Health: Care Homes
	 — 
	Question

Baroness Pitkeathley: To ask Her Majesty’s Government whether they have any plans to abolish the practice of payment of retainer fees to general practitioners for providing services to care homes.

Baroness Jolly: My Lords, my honourable friend the Minister of State for Care and Support has written to the chief inspector of general practice and to the chief inspector of adult social care to ask them to consider this issue. Let me be clear: GP practices should ensure that any services provided to care homes for which a retainer is charged are not those currently provided under their contract with NHS England. NHS England is responsible for ensuring that the terms of the GP contract are being met.

Baroness Pitkeathley: I thank the Minister for that reply, but does she agree that, since all patients in care homes are, as she says, entitled to NHS services anyway, to charge them for an enhanced service and then not provide it is actually fraudulent? Moreover, it causes a great many problems in the NHS as well. If an old person is not adequately treated in the care home, that often results in unnecessary admission to hospital through A&E, unnecessary distress for the older person and unnecessary cost for the NHS when they could have been treated simply and quickly in the care home had the GP been doing a proper job. Will the Government take further action on this?

Baroness Jolly: The noble Baroness is right, and the Government have made clear their commitment to improving care for vulnerable old people. As I said in my Answer, any GPs who provide services should do so free of charge, and any money paid by care homes to practices should be for something over and above that. The sort of thing that we might be thinking of is assistance with training or possibly helping out with something like a health and safety audit, but certainly not basic NHS care.

Baroness Brinton: My Lords, there is a huge disparity in the fees paid by care homes and a variation in the services that they receive from GPs. Given the evidence of arbitrary levels of retainer fees and variability in the definition of “enhanced services”, can my noble friend tell your Lordships’ House what the Government are doing to prevent what appears to be double-charging?

Baroness Jolly: It certainly does appear to be double-charging, and the department is working with both CQC and NHS England to get to the bottom of it. Guidance is in the process of being written and disseminated.

Baroness Finlay of Llandaff: Can the Minister inform us whether consideration is being given to the model of nursing home medicine as a distinct specialty, combining the best of general practice with the best of community geriatrics? This was developed in the Netherlands to provide nursing home medicine care and intermediate-level care, and it has been shown to drive up the standards of care available to those with multiple co-morbidities and frailty.

Baroness Jolly: Certainly. I cannot give chapter and verse on the particular instances the noble Baroness outlines but we are more than aware that proper care in care homes actually helps to drive down inappropriate hospital admissions. Out-of-hospital care can also be applied. That is an enhanced service under the new GP contract.

Lord Hunt of Kings Heath: My Lords, I refer noble Lords to my health interests. There appear to be two different issues from the work by Care England. First, some GPs are charging nursing homes for work that ought to be provided free at the point of use. Secondly, other GPs are calling services “enhanced services” when they are no more than the normal services that should be provided free of charge. Will the noble Baroness say a little more about what action should be taken? As this appears to be fraud, as my noble friend has stated, should this not be a matter for referral to the police?

Baroness Jolly: In the first instance, rather than referring it to the police, NHS England needs to find out exactly the extent of what is going on. The whole business of enhanced services is slightly confused because under the new GP contract there are several enhanced services that would be appropriate within a care home which should not be paid for. Also, “enhanced services” is used as a generic term to imply some sort of value added. Maybe we need to think about how we use language to better differentiate.

Baroness Gardner of Parkes: My Lords, today I had a letter through the House of Lords system on contacting your Member, or whatever it is called, which was referred to me by some other Member of the House. It is about a 91 year-old dentist in a care home who knows that he needs dental care. He has been referred to the community service and told that he must wait 16 weeks for an appointment. Of course, that is very hard. What is the relationship? The National Health Service for services in the care homes should be not only medical but dental.

Baroness Jolly: Dental services are provided by NHS England, and community dental services fall into that area. In the first instance, I would probably contact my local CCG and ask it to talk to the local NHS England on its patch.

Lord Foulkes of Cumnock: My Lords, will the noble Baroness or one of her colleagues in the Department of Health arrange to meet Alex Neil, the Scottish Health Minister, to discuss the position there and what we can learn from each other?

Baroness Jolly: In the world of care there is a lot to learn from everybody. There are probably regular conversations with NHS Scotland and NHS Wales. The noble Lord shakes his head. I will go back to the department and suggest that such a meeting might be a possibility.

Lord Mawhinney: My Lords, given that most people in care homes are either paying to be in the care home or the local authority is paying for it, will the Government consider making it a requirement that all care homes have to tell those who are funding it how much, if any, of the fee is as a result of so-called enhanced GP services?

Baroness Jolly: Certainly none of the fees should be towards enhanced GP services. That is rather the point that the Question asked by the noble Baroness outlined. What needs to happen is that NHS England must look at it quite seriously to ensure that no GPs are sending a bill to any care home on their patch for delivering services they should be providing freely.

Justice: Cautions
	 — 
	Question

Baroness Gardner of Parkes: To ask Her Majesty’s Government how many offenders received multiple cautions in the past year; and what plans they have to review the guidance to the police on the use of cautions for serious crimes.

Lord Faulks: My Lords, of the 181,000 offenders cautioned in the 12 months ending September 2013, 9,700—that is, 5%—had received a previous caution in the preceding year. The Government recently announced amended guidance for police forces on the use of cautions, following the conclusion of the Review of Simple Cautions, published on 14 November 2013. We are now legislating, in the Criminal Justice and Courts Bill, to restrict the use of repeat cautions. The Government are clear that cautions should not be used where a criminal has received a caution or conviction within the previous two years, in the absence of exceptional circumstances.

Baroness Gardner of Parkes: I thank the Minister for his reply. How effective does he think the present caution is? The young offender programme, led by the National Grid, has successfully trained more than 2,000 people to be good employees in good jobs in the past 10 years. Bearing this in mind, is there a place, in the case of less serious crimes, for early
	intervention before a criminal conviction, to help those under caution—particularly young people—through mentoring or courses such as those that are used with driving offences, where I understand that the courses are offered to prevent the need for further cautions or prison sentences?

Lord Faulks: My Lords, there is a range of available options. For example, there is a youth conditional caution, where a caution can have conditions attached. These conditions must be rehabilitative, reparative and punitive; punitive conditions can include unpaid work and a financial penalty. However, the most widely used community sentence for those under 18 is a referral order which has a clear basis in restorative justice. A youth rehabilitation order, which can include as many as 18 different requirements, is also an alternative to custody.

Baroness Hamwee: My Lords, does the Minister agree that what is important, as well as the aspects he has shared with the House, it that there should be consistency across police forces in the use of cautions?

Lord Faulks: I do agree with my noble friend. The Ministry of Justice has hitherto given administrative guidance but, in order to provide transparency and clarity for both the police and public, we are legislating. Clause 14 of the Criminal Justice and Courts Bill sets out restrictions on the use of cautions and makes quite clear the circumstances in which cautions are appropriate, to encourage the very consistency to which the noble Baroness refers.

The Lord Bishop of Peterborough: My Lords, the Minister mentioned restorative justice. Does he agree that, alongside limited use of cautions, a greater use of restorative justice interventions could be of great help, both in reducing reoffending and in supporting victims?

Lord Faulks: My Lords, I agree with the right reverent Prelate. There is a great case for restorative justice in appropriate cases, and it is indeed an option for it to be part of the conditional caution. There is increasing approval in this House and outside of its use.

Lord Beecham: My Lords, with a nod to the next Question from the noble Lord, Lord Horam, given the apparent increase in the use of cautions by police forces in the past few years, might it be desirable for the Office for National Statistics to look at the figures for reported crime and for cautions? People may well be suspicious that the recorded crime statistics are depressed by the use of cautions.

Lord Faulks: My Lords, the House may be interested to know that the use of out of court disposals rose significantly between 2003 and 2007 but has fallen significantly since 2007 and continues to fall under this Government. The use of cautions is at its lowest point for almost 30 years, and nearly at half the level seen in 2007. Furthermore, crime continues to fall. Recorded crime is down by more than 10% under this
	Government and the independent Crime Survey for England and Wales shows crime is at its lowest level since records began.

Lord Foulkes of Cumnock: My Lords, would the Minister, or one of his colleagues in the Ministry of Justice, arrange to meet with Kenny MacAskill—

Noble Lords: Oh!

Lord Foulkes of Cumnock: Well, I am consistent. Will he meet the Scottish Justice Minister to look at the position in Scotland and see what we can learn from each other?

Lord Faulks: I am sure—as was the Minister who previously answered Questions—that there is a great deal to be learned from Scotland. Should the opportunity arise, I will certainly take advantage of it.

Lord Phillips of Sudbury: Might the decline in statistics—I hate even to question it—be down to the almost complete absence of the bobby on the beat?

Lord Faulks: I do not accept that. The use of cautions is widespread. One of the reasons we are making absolutely clear on the statute book the circumstances in which cautions should be used is that it will enable local scrutiny of the use of cautions. Indeed, this will enable the much maligned police commissioners to look at the figures, to be answerable to the community and to ensure that the statistics remain at a satisfactory level.

Economy: Inflation
	 — 
	Question

Lord Horam: To ask Her Majesty’s Government what assessment they have made of the latest report of the Office for National Statistics on the consumer prices index and its impact on household budgets.

Lord Newby: My Lords, the consumer prices index measure of inflation decreased on an annual basis to 1.9% in January 2012 from 2% in December. This is the lowest rate since November 2009, which is good news for families and businesses. In its December economic and fiscal outlook, the Office for Budget Responsibility forecast average nominal earnings growth to rise more rapidly than CPI inflation this year.

Lord Horam: I wonder whether my noble friend saw the excellent speech by the chairman of the Engineering Employers’ Federation last week in which he said that he thought now was a good time for employers to give a good wage increase to their employees to make up for the restraint they had exercised during the years of Labour’s great recession. Does he agree with this sentiment? Does he further agree that it
	would be even more excellent news if, in the Budget next week, the Chancellor thought it fit to raise, once again, the income tax threshold, thus reinforcing our commitment to the low paid?

Lord Newby: My Lords, I agree with the EEF on the desirability of wage increases, particularly for those on lower incomes and not only, as has happened all too frequently in recent years, for those on the board. I also agree that raising the income tax threshold further is an excellent way of helping people on modest incomes and I hope that we can do more of it.

Lord Barnett: My Lords, I take it that the noble Lord agrees with Robert Peston of the BBC—I am not referring to my dear and noble friend Lord Peston—who said that, on the figures given by the Government, the change from RPI to CPI would cost £83 billion over 15 years. That would mean substantial losses in retirement for pensioners in private sector businesses, not those in the public sector. This is a substantial loss in revenue for those people. What plans do the Government have to compensate those pensioners in retirement, who will suffer considerably?

Lord Newby: My Lords, the noble Lord knows that this Government and the previous Government decided to move to CPI from RPI as a measure of inflation simply because we believe it is a more appropriate way of measuring inflation. It is as straightforward as that. Everyone who is affected by CPI rather than RPI will be affected by a better measure of inflation.

Lord Lawson of Blaby: My Lords, while the operational independence of the Bank of England on monetary policy is of the first importance, would my noble friend consider saying gently to the governors that their authority would be greater and the effectiveness of monetary policy enhanced if they were to talk rather less about matters that are market sensitive?

Lord Newby: There is a tension as far as the Bank of England is concerned. If it does not say anything it is criticised for not giving any indication of what it thinks; and when it does say something, it is criticised for saying what it thinks. That is an inevitable problem. On balance, it is better to have the governor and other members of the senior management of the Bank of England explaining what they think is happening to the economy, what they are doing and why they are doing it.

Lord Sugar: My Lords, the average family has paid £1,350 extra in VAT since it was increased by the Government. I am hearing noises from the Government that the economy is supposed to be looking up a little. If that is the case, would the Minister consider asking the Chancellor to revert back to a rate of 17.5% in his Budget next week?

Lord Newby: The noble Lord is not alone in hearing that the economy is improving: the economy is indeed improving. The British Chambers of Commerce increased their growth forecast to 2.8% only yesterday; the growth
	in permanent jobs, according to KPMG, was last month at its second highest since records began. As far as VAT is concerned, the noble Lord is asking the Government to spend somewhere in the region of £12 billion to £14 billion extra. We have not eliminated the budget deficit: the only reason we have what now looks like sustainable growth is that we have a credible path for the public finances and interest rates and we are not going to throw that away.

Baroness Humphreys: My Lords, the items which undoubtedly have the greatest and most disproportionate impact on the household budgets of those on low incomes are energy bills. Will my noble friend give some indication as to what action the Government can take to reduce these bills for low-income households?

Lord Newby: My Lords, as my noble friend is aware, we took action in the autumn to reduce household energy bills. In the longer term, the key aim is to ensure that we have sustainable energy supplies; the Government’s energy policies are designed to do just that.

Lord McFall of Alcluith: My Lords, the figures indicate that in four years’ time, in 2018, typical living standards for a household will be 3.5% lower than they were in 2007, before the financial crash. Does that not indicate that the Government have to be open and honest about the situation, so that, in the Budget next week, the Chancellor will bring forward policies that will assist hard-working families and households in this country who feel the pressure ever so much as the months go past?

Lord Newby: My Lords, the GDP is going to be higher in the second half of this year than it was before the crash. We are going to have more people in work. These are the two key determinants of how the average household is going to feel. In the mean time, by taking actions such as freezing fuel duties and increasing the threshold for income tax, we have given some relief to tens of millions of individuals and we intend to maintain those policies.

Lord Higgins: My Lords, in respect of my noble friend Lord Lawson’s question, is it the Government’s view that forward guidance by the Governor of the Bank of England on interest rates was helpful or not?

Lord Newby: Yes, my Lords, the Government welcomed the decision by the current governor to issue forward guidance last August. We continue to support the concept of forward guidance.

Lord Davies of Oldham: My Lords, the Minister might try to wear his rose-tinted spectacles, but he knows the facts. He knows that ordinary working people on average have lost £1,600 a year since this Government came into office. He knows that families, through the Government’s tax and benefit changes, have lost £891 pounds a year and he knows from the most recent statistics that zero-hours contracts have
	increased threefold since this Government came into office. By heavens, they have a lot to do to make up for those deficits.

Lord Newby: There is a question over whose deficit we are talking about here. The noble Lord knows that since the 2010 election, employment has increased by 1.3 million; unemployment is down by 152,000; there are more women in work than ever before; and every single survey for the future suggests higher income, more people in work and a growing economy. That is a record to be proud of.

Lord Spicer: This has all become a little bit distorted. Does my noble friend agree that inflation is a bad thing and that keeping it down is the rightful priority of the Bank of England?

Lord Newby: Indeed, my Lords. Whatever the forward guidance of the Bank of England, it does not detract from its basic purpose, which is to keep inflation at or around 2%. That is the position we are now in and we believe that it will be the position going forward.

Lord Grocott: My Lords, I hope I will not alarm the Minister too much if I say that I have been listening carefully to what he has been saying and, if I had come from outside, I would find it impossible to answer the question as to whether the Minister was a member of the Liberal Democrat party or the Conservative Party. Bearing that in mind, does he agree that, come the next general election, if people want a Conservative Government, the best thing to do is to vote Conservative; if they want a Labour Government, the best thing to do to vote Labour; and if they are thinking of voting Liberal, that is probably a waste of time?

Lord Newby: The noble Lord knows that I speak from the Dispatch Box for the Government. I am sure that he will not be surprised to know that I am extremely proud of this Government’s record on the economy.

Employment: Universal Jobmatch
	 — 
	Question

Baroness Sherlock: To ask Her Majesty’s Government what steps they are taking to ensure that all vacancies advertised on Universal Jobmatch are genuine.

Lord Freud: The vast majority of employers post genuine jobs, and we do not hesitate to take action against those who do not follow our rules. We regularly monitor Universal Jobmatch to ensure that accounts comply, including that vacancies are genuine. If there is any cause for doubt, we will remove the vacancies until we have investigated. We continuously improve the service and are working with the provider to enhance our validation of employer accounts and vacancies.

Baroness Sherlock: I thank the Minister for that very reassuring Answer. How does he then explain the fact that the media are reporting that a third of a
	million jobs on that website are ghost jobs? The Government were warned. The site has been found to be vulnerable to hackers. In the National Online Recruitment Awards, it won the wooden spoon for being a,
	“mongrel of a recruitment website”,
	that,
	“commits almost every online recruitment crime, and then some”.
	Channel 4 investigated last month. It found that one in 50 jobs had been placed by one man in Coventry. He could not prove that they existed, but it turned out that he made money every time he passed on a CV to a real agency. Channel 4 found out that, of the 600,000 jobs there, 118,000 were from one door-to-door catalogue company. This is a disgrace. You could not make it up. Will the Minister tell the House two things: first, when did the Government first know that there were problems with ghost jobs on this site; secondly, can he assure the House that no jobseeker has been sanctioned for refusing to apply for a ghost job or a job which they feared was there just to harvest their personal details?

Lord Freud: My Lords, Universal Jobmatch has revolutionised the service of Jobcentre Plus. It is a transformative service. We have many people registered on it on a paperless basis. Half a million employers are on that service. As I said, we monitor it the whole time. We are now looking at 179 employers who may be in breach of our conditions and will suspend them if they prove in breach. I can assure noble Lords that no jobseeker will be sanctioned for not applying for a job that does not exist.

Lord German: My Lords, this website is crucial to people seeking to find a job, and many tens of thousands of people have found jobs as a result of it, but obviously there are concerns about people’s personal information and the security of it. What action has been taken against hackers, particularly those who seek to spread individuals’ personal information in their CVs to people to whom they have not applied for jobs?

Lord Freud: We have a thorough communication exercise to jobseekers to make sure that they look after their information online, just as anyone else needs to be careful with their information online, and we are currently looking to enhance our service through Universal Jobmatch to make sure that we do not have this kind of problem.

Lord Davies of Stamford: My Lords, there is quite a lot of anecdotal evidence, certainly in Lincolnshire and I suspect elsewhere, that it is disproportionately difficult for older people in their 50s and early 60s to get jobs through the jobcentre system. In the event that there is evidence of age discrimination against applicants, it is very unreasonable to expect the applicant, who may be a man or woman without means or with very slender means, to pursue his or her own legal redress. Is it the Government’s policy in such circumstances to pursue the case and if possible to prosecute? Have there been any prosecutions for age discrimination instigated by or supported by the department?

Lord Freud: The Government do not support age discrimination of any kind, particularly in looking for jobs and we are vigilant to make sure that people do not experience such discrimination.

Lord Lea of Crondall: Does the noble Lord recognise that some jobs advertised at the minimum wage do not get the minimum wage—not because of national insurance but because of deductions of commission or something like that? What steps are the Government taking to investigate practices along those lines?

Lord Freud: That is one of the specific areas in which our terms and conditions rule out going on to Universal Jobmatch. We will look at those jobs and employers and suspend them and withdraw those jobs.

Baroness McIntosh of Hudnall: My Lords, the Minister did not answer my noble friend Lord Davies on the subject of prosecutions for age discrimination. Does he have that information?

Lord Freud: I do not have to hand how many prosecutions we have made, but I will of course write when I know that information.

The Earl of Listowel: My Lords, as more people are being encouraged into work, is the Minister aware that unidentified mental health needs are becoming more apparent? How can these people be helped to address their mental health needs so they can benefit from the services of the kind he is discussing?

Lord Freud: The greater intensification of the relationship between the jobcentre and claimants as a result of universal credit and the claimant commitment has begun to unpick some of the challenges and barriers that claimants face. One of those, clearly, is mental health and we are undertaking an exercise to look at how we can help such claimants. That is not easy. No one in the world has managed to achieve this. We are currently looking at doing a series of pilots to find out how best to help people with mental health problems.

Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014

Crime and Courts Act 2013 (Family Court: Consequential Provision) Order 2014

Justices’ Clerks and Assistants Rules 2014
	 — 
	Motions to Approve

Moved by Lord Faulks
	That the draft orders and rules laid before the House on 27 January be approved.
	Relevant document: 20th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 3 March
	Motion agreed.

Non-Domestic Rating (Levy and Safety Net) (Amendment) Regulations 2014
	 — 
	Motion to Approve

Moved by Baroness Stowell of Beeston
	That the draft regulations laid before the House on 27 January be approved.
	Relevant document: 20th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 3 March
	Motion agreed.

Co-operative and Community Benefit Societies Bill [HL]
	 — 
	Third Reading

Bill passed and sent to the Commons.

Offender Rehabilitation Bill [HL]
	 — 
	Commons Amendments

Motion on Amendment 1
	 Moved by Lord Faulks
	That this House do agree with the Commons in their Amendment 1.
	1: Clause 1, leave out Clause 1

Lord Faulks: My Lords, I start by expressing my regret that I did not have the benefit of being on the Front Bench when the Bill was last considered by your Lordships’ House. It was of course my noble friend Lord McNally, whom I am glad to see is in his place, who had the privilege of debating the Bill with noble Lords. I have, however, read the Official Report of those debates very carefully. I am struck by the expertise and passion displayed by all noble Lords who spoke. I have myself sat as a recorder so I have some experience of the issues that offenders face when trying to turn their lives around. However, my own experience pales in comparison with the experience and careers of many who have been involved in the justice system who have spoken during the passage of the Bill. I am sure that the collective experience of all those noble Lords will inform today’s debate, just as it has informed previous debates.
	Commons Amendment 1 returns to the issue that dominated discussion when the Bill was last in your Lordships’ House: the Government’s reforms to probation under the Transforming Rehabilitation programme. It may help if I briefly summarise those reforms. Their aim is to reduce our current high reoffending rates. Almost half the offenders released from our prisons,
	and around one-third of those serving sentences in the community, offend again within a year, and of course prisoners released from short custodial sentences, who have the highest reoffending rates, receive no statutory supervision at all. I pay tribute to the excellent work that is already done by the probation staff with offenders subject to supervision in the community. They do important and difficult work. However, I am sure all noble Lords will agree that there is much more that we could do to address the causes of that reoffending, whether that is housing, physical and mental health issues, substance abuse or literacy, numeracy or employment skills.
	It is unfortunately the case that we have to do so in the context of financial constraints on government spending. We spend around £800 million a year on probation services, a significant part of the Ministry of Justice’s budget and one that cannot be exempt from these pressures. We have a choice: either to make cuts to the current system, which of course does not provide supervision to the short-sentenced offenders who need it most, or reform the system so that our resources can provide support to all the offenders who need it. The current Lord Chief Justice put this challenge well last week when he said:
	“The starting point is that we must be radical in our thinking”.
	The Transforming Rehabilitation reforms rise to that challenge. We are seeking to draw on the experience and expertise of a wider range of organisations from across all sectors to support low-risk and medium-risk offenders in the community. We want to give probation staff working in those organisations much greater autonomy to support offenders as they see fit and to encourage innovation. We are creating a new National Probation Service—the NPS—directly to manage all offenders with a high risk of causing serious harm, together with any other sexual or violent offenders subject to multi-agency public protection arrangements—MAPPA.
	The efficiency savings that these reforms will generate will be reinvested in two major prizes that many noble Lords have long argued in favour of. The first is a through-the-gate system of support for everyone released from prison, so that the same organisation is working before their release and afterwards. The second is the extension of supervision after release to short-sentenced prisoners, which is at the heart of the proposals in the Bill and which will allow us to support some of the most prolific offenders in our criminal justice system.
	It was clear at Second Reading and beyond that many noble Lords wanted a greater chance to scrutinise these changes that the Government are making to probation services. That is what I understand to be the purpose of the amendment tabled on Report by the noble Lord, Lord Ramsbotham, which Commons Amendment 1 would remove. I remind noble Lords that the Secretary of State’s powers to commission services from a wide range of organisations already exist in the Offender Management Act 2007. Those powers, which both Houses approved, do not provide for parliamentary scrutiny of the services that the Secretary of State commissions. Nevertheless, I understand why the House might have taken the position that it did in June last year. At that stage, while the Government
	had announced their intention to commission probation services from a wider range of organisations, we were still developing the detail of how the new system would work. Nine months on, the position is different.
	The Government have published extensive information about the reforms. That includes full details of how the operational processes in the new system will work, a list of organisations that have passed the first round of the competition for rehabilitation contracts, and draft contracts. Copies of all those documents—they form a significant pile: I have them here—have been placed in the Libraries of both Houses. I have also discussed the detail of the reforms with a number of noble Lords in recent weeks and offered opportunities to meet to noble Lords of all parties. That information addresses, I hope, the many questions that noble Lords raised about the reforms in May and June last year. Let me summarise some of the most important of them now.
	First, there is the crucial issue of engaging with and supporting those already working in probation—what the noble Lord, Lord Ramsbotham, described at Report stage as “taking people with you”. We are working closely with probation trusts to make sure that probation staff have the information and support they need while these changes take place. We are committed to treating staff fairly during this period of transition. I am pleased to say that we have reached agreement with the trade unions and the employers’ side over a national agreement for staff transfer, which will protect the terms and conditions of staff transferring to new rehabilitation companies or the NPS.
	There is then the important issue, raised at Second Reading and beyond by the noble Lord, Lord Beecham, and my noble friend Lady Linklater, of making sure that rehabilitation providers and the NPS work effectively together. In particular, there is the need to avoid offenders whose risk category changes falling through the cracks. In the autumn of last year we placed in the Library details of how the new system will prevent that. Once an offender has begun to be supervised in the community by the NPS, that offender will continue to be supervised by it, even if their risk of serious harm decreases later in their sentence. Responsibility for low or medium-risk offenders whose risk escalates to high will transfer to the NPS, but the transfer will happen in a way that minimises the risk of destabilising the offender. For example, the rehabilitation provider will generally continue to be involved in delivering some interventions to the offender, even though the overall case responsibility has moved.
	There is the important issue of the skills and training of staff supervising offenders, raised in particular by the noble Lord, Lord Ramsbotham. The NPS will continue to use the probation qualifications framework—PQF—to ensure staff competence. For the new rehabilitation companies there will be a contractual requirement to maintain a workforce with appropriate levels of training and competence. They can use the PQF or—for cases where there might be an excellent member of staff such as an ex-offender, who has gained skills from a non-traditional route—an alternative
	framework to evidence that. I am sure noble Lords will agree that we should not lose particularly valuable experience just for the sake of a qualification, provided that those who are responsible are satisfied that those who are unqualified have the ability, experience and skill to perform the relevant function. The Government are also supporting probation representative bodies to establish an independent probation institute, an idea raised by my noble friend Lord Marks at Second Reading. That will help to promote the development of innovation and share good practice across those working in the NPS and the rehabilitation companies.
	There is also the need, raised my noble friends Lord Dholakia and Lady Hamwee, to ensure that we have a diverse market and that bigger organisations do not crowd out smaller voluntary or community groups. Thirty bidders have now been shortlisted as lead providers, covering 50 organisations from a wider range of sectors, including 10 probation mutuals. A further 800 organisations have expressed an interest in playing a role as part of the wider supply chain, with more than 550 voluntary sector organisations among that number. We have published a set of market stewardship principles that demonstrate our commitment to ensuring that these organisations are treated fairly by larger providers.
	Finally, there is the question, raised by the noble Lord, Lord Ponsonby, in Committee and on Report, of how the new rehabilitation companies will take part in existing statutory and non-statutory partnerships. I can now confirm—this is set out in clause 3 of the draft contract which he may well have seen—that they will be contractually required to participate in the relevant statutory partnerships. For example, companies will be designated as a responsible authority under Section 5 of the Crime and Disorder Act 1998 and as such will be subject to the associated statutory requirements with regard to community safety partnerships. They will also be contractually required to engage in non-statutory partnerships aimed at protecting the public from harm and safeguarding vulnerable adults.
	All of what I have just described is set out in extensive detail in the documents the Government have provided to both Houses. It builds on nearly 20 hours of debate on this Bill in your Lordships’ House and 26 hours in the other place, much of which focused on the detail of the Transforming Rehabilitation reforms, and there were four votes in the other place in support of the reforms. We will, of course, continue to make more information available to Parliament as the reforms progress. This will include final versions of contracts, a revised version of probation national standards and details of the organisations which are successful in winning contracts.
	I conclude by stressing again that the position now is different from that in June last year when the House last debated this issue. The probation reforms are being implemented under powers that both Houses agreed as long ago as 2007 and which are settled law. While those powers do not require parliamentary scrutiny, the Government have stuck to their commitment to provide extensive information to both Houses about the reforms. We have acted on the concerns raised when the Bill was last in this House, for example,
	through supporting the establishment of a probation institute and by publishing a consultation on the statutory and non-statutory partnerships that rehabilitation providers should be required to participate in. The elected House has made its support for the reforms clear.
	At Second Reading, the noble Lord, Lord Ramsbotham, drew on the words of Caliban in “The Tempest”, fearing—inverting his words, I think—that the Transforming Rehabilitationreforms would,
	“give hurt and delight not”.—[ Official Report , 20/5/13; col. 664.]
	I cannot promise the House a thousand twangling instruments, but if I may turn to the words of Prospero to conclude my remarks, I hope I can,
	“promise you calm seas, auspicious gales, and sail so expeditious”.
	I hope that the commitments and reassurances I have set out today have calmed the tempest of noble Lords’ concerns and urge the House to agree with Commons Amendment 1.
	Amendment to the Motion
	 Moved by Lord Ramsbotham
	As an Amendment to the Motion on Amendment 1, at end insert “, and do propose Amendment 1B in lieu of the words so left out of the Bill”.
	1B: Insert the following new Clause—“Probation services
	Probation reform: Parliamentary approval
	(1) No alteration or reform may be made to the national structure or the provision of probation services unless the proposals have been laid before, and approved by resolution of, both Houses of Parliament.
	(2) For the avoidance of doubt, nothing in section 5 of the Offender Management Act 2007 (power to establish probation trusts) shall be interpreted as granting power to the Secretary of State to make structural changes to probation provision unless the conditions of subsection (1) have been met.”

Lord Ramsbotham: My Lords, I have to admit that I have been seriously concerned about the Transforming Rehabilitation agenda ever since the White Paper and this Bill were published at the same time as its announcement in the Queen’s Speech last May. That may seem perverse when, like, I suspect, every other noble Lord, I also admit that I have no quarrel with the Government’s intention to do something about the group of offenders with the highest reoffending rate—namely, those sentenced to less than a year’s imprisonment without any subsequent community supervision—the previous Government’s announced plan for doing this having proved unaffordable.
	My concerns began with the consultation that preceded the White Paper. As in too many other Ministry of Justice consultations, I have come across no one whose contribution has been acknowledged, nor any evidence of any notice being taken of any expressed concerns. Following that sham, neither House has been given an opportunity to debate the White Paper because its agenda is not the subject of this Bill. When I tabled an amendment asking for that to be rectified, the noble Baroness, Lady Hamwee, pointed out quite rightly
	that my wording was faulty because the Offender Management Act 2007, already quoted by the Minister, which the Government claim allows them to alter probation provision in any way they wish without consulting Parliament, did not mention “the probation service” but rather “probation services”. I pressed my amendment to a vote because I thought that my error could easily be corrected and I hoped that the House would understand that I was seeking an opportunity for it to exercise its constitutional duty. Secretly, I hoped that the Justice Secretary, if he was as confident of the viability of his proposals as he made out, might be happy to debate them, first, because he would feel that he need not fear any query and, secondly, because of the legitimacy that such a process would give them. I hoped in vain. Since then, an increasingly long list of subsequent happenings have served to increase my concern that the Ministry of Justice would be unable to deliver what was being announced without prejudicing the ability of probation services to protect the public.
	When the previous Government brought before Parliament their proposal to change responsibility for the national structure and provision of probation services from counties to trusts in the 2007 Act, I remember the debates about what would happen should a probation trust fail. Ministers said that the Bill gave the Justice Secretary the power to dismiss a failing trust and make other arrangements for the provision of probation services in its area without having to come back to Parliament. However, that power was limited to “a probation trust”—words used several times in Section 5 of the Act, quoted by the Minister in another place. I submit that for the Government to press ahead asserting that “a” means “all” is a wilful misinterpretation of the Act, not least because, had there been any indication that that was what the previous Government had intended, I am sure that the point would have been vigorously debated in this House.
	My concerns are not about the intention behind the Bill but the practicalities of delivery and the denial of any opportunity for either House to scrutinise them. If the proposals go horribly wrong, the public, whose protection will suffer, will rightly blame Parliament, and I can just imagine the ministerial blame-dodging that will follow—not least following the leaked internal Ministry of Justice assessment of the high risk of launching something so far-reaching but as yet unproven, a disclosure resented but still not refuted by the Government. Parliament has every reason to seek discussion of its potential position. As the late Paul Goggins MP, a former Prisons and Probation Minister, said in the other place on 3 December:
	“Our electorate expects us to ask questions, not simply to take at face value the kind of proposals that are being offered to us”.—[Official Report, Commons, Offender Rehabilitation Bill Committee, 3/12/13; col. 225.]
	To prove that I am not alone in my concerns—some of which are set out in a list of 50 questions that I have given to the Minister and will willingly share with any noble Lord who is interested—I will cite a number of recent happenings. Last November, three chief executives of probation trusts took the bold step of writing open letters to the Justice Secretary asking for delay. Last December, the Chief Inspectors of Prisons and Probation
	published a damning report on offender management in prisons, doubting whether it could deliver future NOMS expectations. They believed that the current position was no longer sustainable and should be subject to fundamental review as part of the transforming rehabilitation agenda. That was without the addition of offender supervisors employed by community rehabilitation companies responsible for sentence planning both in their contract package areas and in resettlement prisons.
	The Justice Select Committee in the other place, having already drawn attention to the inability of the Ministry of Justice to manage contracts—witness high-profile cases involving G4S and Serco—said in its interim report on the proposals, dated 14 January that,
	“there is a lack of systematic information about the risks they might encounter during implementation and full operational conditions and the steps that they will take to mitigate those risks. They also do not appear to have devised clear contingency plans in the event that the competition fails to yield a viable new provider for a particular area … We wished to examine the affordability of the reforms … but we have been unable to determine whether sufficient funding is in place on the limited information that the Government has provided. Furthermore, a key question for the Government is how the focus on reducing reoffending will be maintained while the restructuring of the market that is necessary to create the desired efficiencies takes place”.
	The lack of funding information includes how much it will cost to supervise 50,000 short-term prisoners per year. The Government refuse to publish their estimate because they claim that to do so would inform those who might be bidding for contracts. Informed estimates by people who know the current cost of supervision are that it will cost between £75 million and £130 million a year. Is it realistic to expect that such a sum will be raised from the competition to provide probation services? If it is, it appears to anticipate a pretty hefty profit margin. Bearing in mind its track record and how long such things take, is it also realistic to expect the Ministry of Justice to satisfactorily let 21 community rehabilitation company contracts in two months? Four days ago, the National Audit Office, in a landscape review of probation, said:
	“Although organizational changes can be implemented relatively quickly, implementing deeper changes to working practices, system developments and cultures will take months and years. In addition, if the system is to achieve real efficiencies and planned cost savings, then departments, agencies and local criminal justice partners need to implement as a priority an agreed and coherent plan to address problems with the flow of information”.
	On information flow, the National Probation Service currently operates some 2,000 separate IT programmes which require co-ordination. What faith can one have in the ability of the Ministry of Justice to do that, when only last Thursday it announced the collapse of a £1 billion tagging scheme launched by the Justice Secretary last August as the start of a revolution in how we supervise offenders? The preferred contractor said in response that the Ministry of Justice had wanted the development of a project that did not yet exist and went on to say:
	“The MoJ have been an extraordinary diversion of much of our resources for two years now and this cannot continue, and we are excited for the prospects of the business now we are free of this unproductive and frustrating relationship”.
	Finally, I will quote from one of the many letters I have received from senior probation officers, who are now leaving in worrying numbers:
	“It would be a deep personal bereavement to leave probation behind, but both the new National Probation Service and community rehabilitation companies look so bleak, so awful in prospect, and neither constitute that to which I committed my career and loyalty”.
	I am most grateful to the Minister for two long meetings with him and the Prisons Minister, and for the amount of paperwork that he has given to me and placed in the Library. However, I must say that while long in aspiration, it is short on proof that the proposed revolution is achievable without damaging the provision of probation. For example, quality assurance arrangements are still missing from the draft services agreement, as is ICT and data management from the latest version of the target operating model. However, far more serious is the total lack of any evaluation of how long it would take to implement all these reforms were they not under the cosh of the admittedly aggressive timetable imposed by the Justice Secretary.
	Surely someone, somewhere was told to work out such details? Before taking and announcing decisions, responsible Ministers, convinced that their changes are for the better, must know how long it will take to bring about sustainable change. The facts that there are so many questions about the achievability of the published timings, and that the Justice Secretary has already been forced to impose one two-month delay, suggest that this essential process was ignored.
	I end with another quotation from the late Paul Goggins, who on 26 November said:
	“Surely it would be sensible for the Minister to unite this Committee and unite the House by running a pilot, with the support of the Opposition, to prove whether or not he is right. If the Justice Secretary is right, and the result is that the pilot works, we would all have to hold up our hands and accept that”.—[Official Report, Commons, Offender Rehabilitation Bill Committee, 26/11/13; col. 33.]
	Hear, hear to that. However, because public protection is as stake, not only would it be sensible, but it is essential that the Government’s proposed changes to the structure and provision of probation services are united with confirmation of their achievability by allowing them to be scrutinised and approved by both Houses. I accept that that will entail delay, which could have been avoided had the agenda been debated at the start. However, surely measured evolution is a more responsible approach to a duty to protect the public than the avoidable upheaval of an enforced unproven revolution. I beg to move.

Baroness Browning: My Lords, at this stage in the Bill, I shall be brief. I feel strongly about the probation reforms being proposed by my noble friend, but particularly those for offenders who have served less than 12 months. I say this having served in the Home Office and having spent some time looking at some of the rehabilitation programmes needed for problems such as drugs and alcohol. Many people suffering from these problems had been in custody and—particularly those with drug addictions—had contributed to the figures that we cite in this House. I quote only one: 58% of adult offenders released from sentences of less that 12 months reoffend. Governments
	in the past have not addressed this. There is rightly a lot of focus on those who have served longer sentences for more serious crimes. However, if my noble friend now wants to address reoffending after shorter sentences, we have learnt in both the Ministry of Justice and the Home Office that if you can find the methodology to address something at the beginning, when it is low level, you can prevent it becoming something much worse. Although in this House we often talk in terms of statistics, we are talking about lives. We are talking about the lives of victims, and in this case about the life of someone after discharge from prison. Finding a way in which we can bring people from short prison sentences to taking their place in society and reducing the recidivism that often goes with such offenders is worth while.
	I listened carefully to the noble Lord, Lord Ramsbotham, whose experience we all respect. It seemed from what he said that a lot of information unavailable when this legislation was introduced is now available. However, he has concerns about government contracts. He particularly mentioned those issued by the Ministry of Justice, but I think that over many years people in both Houses would put a question mark over their confidence in government contracts of many kinds. We have all seen that they do not always deliver as promised. As somebody who has served on the Public Accounts Committee for six years, I am only too well aware, having dug into many government contracts, just how badly some of them have turned out. That applies to Governments of all political persuasions.
	I wonder if there is some way, in responding to the concerns of the noble Lord, Lord Ramsbotham, and to the House, in which my noble friend can make sure that a light shines on those contracts that can be followed by Members of this House after the legislation is passed. Clearly, payment by results is built into these reforms, which in itself will give a very factual account of how successful they are. However, if I have understood the noble Lord, Lord Ramsbotham, correctly, he is looking for something that happens earlier than that, before we get to the end of the process. He is looking for reassurance that the process itself is as robust as it can be.
	I say respectfully to the noble Lord that preventing the legislation progressing as it should is not perhaps the only option that the Minister could consider in making sure that those in this House who are interested in not only the outcome but the process have an opportunity to have much more information available to them. That is not to say that any process will be perfect from start to finish, but I think the noble Lord is trying to say to the Minister that we should pick up any problems earlier rather than later. If that is what he is saying, it is a very valid point to make. Could my noble friend find a way to look at this so that, if the legislation progresses as my noble friend has outlined, we could be particularly careful that the process that is followed is transparent, notwithstanding the fact that, as we all understand, commercial confidentiality is in place when contracts are initially awarded?
	I hope that my noble friend will accept from me that I believe that this is a very worthwhile reform for the Probation Service. Many years ago, long before I
	came into politics, I undertook a course with the Probation Service and worked with it in a voluntary capacity. As a Member of Parliament, I had a great respect for, and often had to call on, the Probation Service on behalf of constituents. So I am somebody who values its work greatly, and I would hate to see the proposals for reform that my noble friend is bringing to the House today in any way undermined by a delay in their implementation. I am sure that he will have heard what the noble Lord, Lord Ramsbotham, said, and I hope that he will find a way through this so that the House can proceed. I believe that these reforms are much needed and that the sooner they can start, the better.

Lord Ponsonby of Shulbrede: My Lords, I, too, wanted to concentrate, like the noble Lord, Lord Faulks, on what has changed since a very similar amendment was debated on 25 June last year, having been moved by the noble Lord, Lord Ramsbotham. It is worth recalling that, as the noble Lord, Lord McNally, pointed out, on that vote not a single Cross-Bencher supported the Government’s position. Since then, the Bill has been through the House of Commons, the vote has been reversed and the Government have done a lot of work, as I acknowledge.
	In the debate on 25 June, the noble Lord, Lord Ramsbotham, concentrated his remarks on a leaked government risk register. Since then, a second risk register has been published by the Probation Service in November 2013, which spoke of the likelihood that the government programme would fail to be,
	“delivered either in scope or within the timescale set by ministers”.
	It should be noted by noble Lords that, if it were not for the work of the noble Lord, Lord Ramsbotham, and my noble friend Lord Beecham, there would be no debate at all on the timetable for the privatisation of the Probation Service. It is through their initiative that we are having this series of debates in the first place.
	The noble Lord, Lord Ramsbotham, quoted the Justice Committee chairman, Sir Alan Beith, so I shall not repeat that. We have also seen the Government slit the timetable, which was alluded to by the noble Lord, Lord Ramsbotham.
	What I really want to say is that, although we have heard about the changes that the Government have made and about some reports, what we have seen is a sense of increasing alarm in the probation service and among probation officers themselves. The noble Lord, Lord Faulks, is shaking his head, but I, like many noble Lords, have an 18-page document from the National Association of Probation Officers which goes through the concerns that they have in detail. These concerns are now more specific than they were, as they have been able to respond to the Government putting more flesh on the bones. There is no doubting the sense of alarm among probation officers.
	I believe, as I am sure do all noble Lords, that the probation service deals with some of the most dangerous people in our country and some of the most vulnerable people in our society, and that everyone who joins the probation service does so with the best of motives. We have heard about the concerns that they have about
	their careers changing course and being asked to take on responsibilities that they did not expect. This House owes it to the probation service to review the timetable and to follow the recommendations of the noble Lord, Lord Ramsbotham, so that we can be satisfied that we are not wrecking a probation service that has served us so well over many years.

Baroness Linklater of Butterstone: My Lords, I, too, will say a brief word in support and admiration of the probation service, with which I have worked for most of my professional life. I know how important that infrastructure has been, across the country, to the provision that has been given to people who have been at risk of, and have come out of, offending. It will still exist in a minute way, as 20% of the staff will be left to deal with the most challenging offenders. Thank God for that. The 80% who will no longer be part of this organisation will be reborn through the CRCs, which I hope will be able to do as constructive a job as has been done in the past.
	This is a moment to recognise that we are seeing the passing of an organisation that has served this country well for the past 100 years, with a breadth and depth of experience that only time can give. I am sad about that and I want to pay tribute to the service that it has given. I hope that in the brave new world it will still have enough of a voice to allow it to serve us as well as it has in the past.

Lord McNally: My Lords, first I declare an interest as chairman designate of the Youth Justice Board.
	I am breaking a promise that I made to myself not to intervene in MoJ legislation after leaving the Front Bench. However, I do so here because of unfinished business. When I spoke last, I warned the House that the amendment of the noble Lord, Lord Ramsbotham, was defective, and so it proved to be. I also promised to keep the House fully informed about developments. I was mightily impressed by the amount of documentation that was provided in both Houses. I congratulate my successors Simon Hughes and the noble Lord, Lord Faulks, on the progress that has been made, as outlined in great detail by the noble Lord in his opening remarks. The truth is, as the noble Lord, Lord Faulks, said, there have been many hours of parliamentary debate on these matters, and the idea that somehow they have been smuggled past Parliament is plainly absurd. Hours of ministerial time have been afforded to the critics. The noble Lord, Lord Ramsbotham, acknowledged that in written submissions and meetings Ministers have been willing to discuss his concerns in detail.
	I say to the noble Baroness, Lady Linklater, that it is not about our admiration or otherwise for the probation service. I am in awe of the work that probation officers do, and will continue to be so. However, we face a situation in which we could stay where we are, with the probation service as it is but probably facing increased pressures on expenditure and capacity to deliver—the same old same old—or we could embark on radical reforms that would release the resources to
	carry through proper reforms. The progress we have made is truly remarkable—30 bidders covering some 50 organisations, including 10 probation-based mutuals. This really is the dawn of a new era. I disagree with the noble Baroness; this is not the passing of the probation service.
	I remember in the early part of this century following the debates about the probation service. What happened to it? It was turned into the poor relation of NOMS. In these reforms we are going to have a national probation service for the first time: the head of probation will have direct access to the Secretary of State, whereas NOMS does not even have a probation officer on its senior board. That is real progress for the probation service. We are going to have, as initiated by my noble friend Lord Marks, what I hope will become a chartered institute for probation, which will promote professional standards and best practices, not just in the National Probation Service but across the sector. As has been said several times—and each time everyone says how much they agree with it—we are going to have for the first time through-the-gate supervision and treatment for those sentenced to less than 12 months, a group populated mainly by young offenders and women offenders. That is another bonus.
	I understand the concerns; it is very easy, when opposing things, to roll out the risks. We are dealing with a risk business. There are risks at the moment in the way in which we deal with very difficult, violent and vulnerable people but I do not believe that those risks are such that we should throw aside the opportunity to radically reform this sector to achieve the supervision we want for those with sentences of less than 12 months, which goes to the heart of reoffending.
	It may be embarrassing to remember, but this legislation is being carried through under Labour’s 1997 Act. I followed the reports as the legislation went through: Labour carefully never guaranteed to the probation service that there would be no further reforms after 2010. I suspect that it was because Labour Ministers then realised that to open the door to reform of the under 12 months sector, get those crucial reforms and provide through-the-gate treatment, they also had to reform the probation system itself. That is why, when Labour proposed treatment for those with sentences of less than 12 months, the proposal had to be abandoned because it could not be afforded under the system at the time.
	That is the reality. I have to say to the noble Lord, Lord Ramsbotham, that the delay that he wants offers no way forward. It would deliver an unreformed service exposed to further cuts with, as I said, no supervision for those with sentences of less than 12 months and no through-the-gate service.
	The Government have put forward a package. Since the Second Reading of this Bill, I have presented it to this House as a package of probation reform where a whole range of voluntary and charitable organisations, as well as private sector providers, have brought forward these new ideas and initiatives into the sector to tackle reoffending and to promote rehabilitation. It is a reform of which I am proud. It is an honourable package offering protection for the staff and a chance
	to enhance the influence and professional standing of probation. It takes into account the protection of the public, and I have seen the testing of the various structures in that regard.
	I agree entirely about the problem of government contracts but it is a problem that is not new to this Government or to the MoJ. A lot more work needs to be done and I believe it is already under way in the Cabinet Office, which is looking at upskilling public services to manage public contracts. However, that is not a reason for delay. These reforms open the door to new ideas, new methods and new technologies from the charitable, voluntary and private sectors, while preserving what is best in our probation service.
	I will vote against the amendment proposed by the noble Lord, Lord Ramsbotham, and I will vote with the Government because I am willing to vote for the means as well as the ends. I urge all noble Lords who support those ends to join me in the Lobby today.

Lord Beecham: My Lords,
	“the Government claim that the aim of the Bill is to reduce reoffending ... Its real objective is to secure more centralised … control over the commissioning of offender management services. It centralises everything on the Home Office and removes responsibility from local people who govern the Probation Service”.—[ Official Report , 17/4/07; col. 126.]
	Those words were uttered from the Opposition Front Bench by no less a person than the noble Baroness, Lady Anelay, in a previous incarnation, when the House was debating the Offender Management Bill.
	Nor was she the only opposition spokesman to criticise that measure on similar grounds. David Davis, who in the words of a famous movie character was “once a contender”, said that that Bill was,
	“about more centralised Government control over offender management … a recipe for disaster”.—[ Official Report , Commons, 28/2/07; col. 1027.]
	A second reason for opposing that Bill was that it focused on “yet another organisational restructuring”. Those are interesting observations because, in a characteristically cavalier and disingenuous way, Ministers—until now not yet including the noble Lord, Lord Faulks—are now seeking to rely on provisions which they opposed and which they now deliberately misrepresent.
	The Government chose to undertake this massive and highly controversial reorganisation of the award-winning probation service without seeking any degree of parliamentary approval. If it had not been, as my noble friend Lord Ponsonby remarked, for the efforts of the noble Lord, Lord Ramsbotham, and, if I may say so, my efforts, there would have been no debate about the issue before the noble Lord, Lord McNally, who is continuing to promote the cause from the Back Benches in his new capacity. The whole House will join me in wishing him well in his new role, and I have every confidence that he will carry out that role very satisfactorily.
	The Government pretend that the Labour Government’s intention—and the noble Lord, Lord McNally, has hinted as much today—was quite consistent
	with what the present Government are doing. Yet the then Home Secretary, who is now my noble friend Lord Reid, said explicitly:
	“If, at some future point, any Government were to decide that the time was right to open up that area of work”—
	that is, offender management—
	“they would have to make the case to Parliament, and Parliament would have the final say”.
	He went on to describe it as a,
	“double lock meaning that any movement after that will require a vote of both Houses”—[ Official Report , Commons,
	28/2/07; col. 1024.]
	That is something that the present Government have been at pains to avoid.
	In addition to this critical procedural issue, my noble friend Lord Reid was also clear about the policy. He said that the 2006 Bill was about “supplementing” the public sector. He said:
	“The public sector already has, and will continue to have, a key role to play in the management and rehabilitation of offenders”.
	He pledged that the then Government would maintain their,
	“sustained commitment to our probation services”,
	and would enable,
	“specialist providers in the voluntary, charitable and private sectors to supplement—not supplant—the public sector, where appropriate”.—[ Official Report , Commons, 28/2/07; col. 1018.]
	The Government wanted to increase, not reduce, local accountability.
	By no stretch of even a vivid ministerial imagination could these words, or the legislation which they describe justify the interpretation that has been deliberately and misleadingly applied to them. Caliban’s explanation, if I might revert to “The Tempest”, as the Minister has done, slightly modified, could be applied: “O brave new world that has such legislation in’t”.
	We should not be surprised. The Lord Chancellor, like his predecessor never knowingly understated, but without Ken Clarke’s knowledge, understanding or respect for the legal system or questions of justice, frequently implicitly criticises the probation service for high rates of reoffending. In the Second Reading debate in the House of Commons, he acknowledged:
	“The probation trusts are currently hitting many targets, but there is one simple reality at the heart of all this: reoffending is currently increasing”.—[ Official Report , Commons, 11/11/13; col. 665.]
	Of course, he chooses, either deliberately or carelessly, to ignore the fact that this is true of those offenders who are not supervised by the probation service—notably those serving short sentences. We applaud the determination to extend supervision to such offenders, but we are deeply concerned at the way in which the Government propose to tackle the problem—a concern made the more profound by the procedure that they have adopted. They have repeatedly refused to disclose the risk register, but have not denied a leak which asserted that there was an 80% risk of an unacceptable drop in operational performance, nor have they contradicted HM Chief Inspector of Probation’s warning of,
	“an increased risk to the public”.
	This is no way to treat a matter of high political salience and public concern, a professional and dedicated workforce, or indeed, Parliament itself.
	We are now in a position in which the Government have for months been pressing ahead with their ideologically driven agenda, having made it clear that they have no intention of listening to the views of this House, as expressed in the amendment carried last year. They have ignored the criticisms and reservations expressed by a wide range of bodies, from the service itself to the inspectorate and the Justice Select Committee. The original timetable has been extended because of the difficulties encountered. The Government continue to rely on assertion rather than evidence, and they have signally failed to answer many of the questions their policy has provoked, including 50 posed by the noble Lord, Lord Ramsbotham.
	The most telling of their failures is that they have failed to pilot the changes—notably the introduction of the payment by results system. Indeed, they chose instead to halt the pilot in the West Midlands and Staffordshire which involved the probation trust commissioning services and working with external providers. Instead they put their faith and public money into organisations with pretensions of having the capability of delivering any kind of service, from welfare administration to prisons, health to IT, despite repeated evidence of their shortcomings and in some cases highly dubious practices, not least in relation to financial matters. It is to those organisations that the Government wish to consign the management of a service, or more accurately 70% of a service, which has to address the needs of hundreds of thousands of individuals every year as well as the wider community, and which has to measure and deal with the risk to public safety that a fluctuating proportion of offenders represents.
	It is this very issue of risk, and the change in risk category that has raised such profound concerns. It is still unclear how the binary system which the Government are hell-bent on creating will work in practice—the more so especially since it would appear there will be no requirement for the community rehabilitation companies to train their staff to the standard of the probation qualifications framework, although the Minister said they might do so if they wish, or indeed to any other specific standard.
	Major questions arise about the handling of domestic violence issues, work within prisons and how the system of court reports will work, given that this will remain the responsibility of the probation service although, by definition, many of the 250,000 court reports required every year will be for offenders managed by CRCs, not by the probation service itself.
	There is also the question of accountability. In the sphere of offender management, we are seeing the development of the same massive, top-down reorganisation which the Prime Minister promised would not be inflicted on the NHS but which the Government nevertheless imposed. Like the nine massive regions of NHS England, we will have six regions for probation and supervision in England and another in Wales, with 21 CRCs, and little or no co-terminosity with other agencies, notably local government and the
	police. I hope that Liberal Democrat Peers, who thought they had moderated their partners’ proposals for the NHS, will not allow themselves to be taken for a ride for a second time.
	In particular, will the service be subject to local authority scrutiny, like the NHS, at local level, or that of combined authorities where these exist? We need to know just how the tendering process is going, how many areas will have competitive, or any, bidders, how many organisations will be allowed more than one contract and precisely how payment by results will work, both in terms of the percentage of the contract price and the timeframe over which results will be measured, as well as what would constitute a failure in terms of the character and number of repeat offences.
	We also need to know what is happening to the current staff. How many do the Government think will opt for redundancy—or have already done so—or fail to secure appointments either to the residual service or to CRCs? Is it correct that the Government announced in the week before last a voluntary redundancy scheme with a budget of £35 million, only to withdraw it last Thursday on the grounds that the money is not available?
	The whole House will share, indeed applaud, the Government’s objectives in seeking to reduce reoffending and close the gap into which short-sentence offenders currently fall. The noble Baroness, Lady Browning, was speaking to a House which fully supports everything she said about the desiderata in that respect. I invite the House to support the noble Lord’s amendment in seeking to ensure that this important goal is achieved safely, within a measured—not rushed—timescale, properly costed, in a way which recognises the strengths of the existing service and its staff and preserves a significant element of local accountability. The only way to ensure this outcome is to require parliamentary approval for the changes which the Lord Chancellor has been at such pains to avoid and not accept a government fait accompli.

Lord Faulks: Before the noble Lord sits down, could he help the House with how he sees the form of the amendment? Does he interpret it as requiring almost any change, of any sort, in the probation service to come before Parliament?

Lord Beecham: That is not my interpretation of it. That could have been levied against the amendment originally moved by my noble friend, but this amendment makes it clear that we are talking about a national change to the structure of the service, not every individual detail. It is consistent with the description I have already read to the House—quoting Hansard—from the Home Secretary at the time, about the requirement for parliamentary approval for changes of the very kind that the Government are promoting without having sought such approval.

Lord Faulks: My Lords, this has been an excellent and important debate. The noble Lord, Lord Ramsbotham, said that he wanted a debate on the probation service and he has got one. However, there have been a number of criticisms of the Government’s approach. Among other things, they are said to have
	delayed but then gone too fast. It is said they have not been sufficiently transparent and that the contract management is not sufficiently secure or not prospectively secure. I will deal with some of these criticisms without wearying the House too much. I have dealt with them in a number of meetings and documents sent to noble Lords but, for the convenience of those who may not have had those documents—or had a chance to read them—I will try and summarise some of our answers.
	Since my noble friend Lord McNally committed to placing documents in the House Library, we have deposited 12 sets of letters, papers and publications about the reforms, including most recently all the draft contracts for the new CRCs. The noble Lord, Lord Ponsonby, raised the question of how CRCs will interact with statutory and non-statutory partnerships. We published a consultation paper about this and all his concerns are now reflected in the operating model.
	Many Peers raised concerns about big private providers outmanoeuvring smaller charities. We have made changes to the number of contract areas to allow for smaller bidders; placed a cap of 25% on market share; engaged with potential tier 2 and tier 3 organisations so that 800 are now registered; and we have decided to accept the suggestion made by my noble friend Lord Marks to set up an independent institute.
	It is said that the approach has lacked transparency and there was reference in debate to the risk register. Both this and the previous Government have agreed that there is a strong interest for the Government in having a safe place to formulate and develop policies for extensive reform. To remove that space and to challenge and manage risks internally would risk damaging confidence in the programme and could lead to a culture where risks are not even raised and properly managed through fear of the implications of doing so.
	I should emphasise that the risk register is by no means a list of things that will happen, only of things that might conceivably happen if we take no action and we should therefore plan for and mitigate the possibility of happening. That is simply good management. The risks are given an inherent score: the score when the risk is first identified without any controls or mitigations in place, and a current score with controls in place. A target score is also agreed. Risks are reported weekly to the departmental board, and throughout the course of the programme Ministers have been kept closely informed of emerging risks and actions being taken to mitigate them. Programme officials regularly meet Ministers—on average twice weekly—on various aspects of the programme, as well as having close and regular informal contact with Ministers’ private offices.
	It is said that there is a lack of clarity about the costing of these reforms. The Cabinet Office and Her Majesty’s Treasury are full members of the programme board before the reforms and attend regular monthly meetings. They have been closely involved with our decision regarding the launch and the invitation to negotiate. The Chief Secretary to the Treasury approved the payment mechanism, the launch of the invitation to negotiate and the outline business case. The programme has been given Treasury approval.
	The question of scrutiny was raised. How, the question was effectively asked, will we make sure that the new system is open to public and parliamentary scrutiny? The reform system will be regulated and held to account through a combination of independent inspection, audit and commercial account management. Her Majesty’s Inspectorate of Probation will inspect services delivered by both the National Probation Service and contracted sectors. NOMS will have the right to audit CRC delivery, and the CRC contracts will also allow the National Audit Office access to CRCs’ financial systems where public reassurance is needed.
	The audit schedule in the draft contracts, which the NAO approved and commented that it provides far-reaching audit powers, provides NOMS with wide powers of access to information, IT premises and personnel, including emergency audit. The NAO scrutinises public spending on behalf of Parliament and holds government departments to account for the way they use public money by reporting the results of its audits direct to Parliament.
	There was a suggestion that staff were not being well managed and that some of them, at least, were reporting to individual noble Lords that they were unhappy with the process of transition which will inevitably happen. We have transition managers working with every probation trust, whose sole role is to be the link between the MoJ and trusts. There are weekly updates sent to probation chiefs; weekly teleconferences are held with senior leaders; testing and pilots of key elements of the programme have been and are taking place; and experts from probation have been seconded to the programme to add their valuable experience.
	In addition, the new heads of CRCs have now been appointed and meet on the MoJ’s sounding board, which is helping to manage the transition process. The Secretary of State corresponds regularly with probation chiefs both through letters and via video message. Ministers and the programme management regularly visit trusts and maintain informal contact with probation chiefs throughout the programme.
	The noble Lord, Lord Ponsonby, referred to engagement with the unions. I did grimace slightly because there has been agreement and complete liaison with the unions. Officials meet regularly with the unions—every two weeks—through a specially established forum devoted to discussing the reforms. Alongside the meetings with the forum—which is our formal engagement body—fortnightly meetings with the unions have taken place since September to look specifically at our pensions proposals. Trade union officials have attended a number of workshops, training sessions and meetings with programme officials to look at specific elements of our reforms. Informal discussions have also taken place on a regular basis and negotiations over the national agreement on staff transfer always took place with a departmental representative in attendance. Ministers have regular meetings with unions every eight to 12 weeks.
	The matter of local partnerships was raised. As was already indicated, CRCs will be contractually required to participate in the relevant statutory partnerships.
	I indicated in my opening remarks that Section 5 of the Crime and Disorder Act 1998 means that CRCs will be designated as a responsible authority and will have a contractual duty to co-operate with MAPPA. They will be expected to have in place arrangements that reflect the importance of safeguarding and promoting the welfare of children, and will be designated as board partners for child safeguarding boards. They will be required to support the NPS to ensure the continued effective implementation of both the statutory and probation victim contact schemes and associated statutory responsibilities. They will also have to follow the established good practice in relation to discretionary victim contact, including identifying and providing key information about offenders to NPS staff so that they can communicate this to victims and, if applicable, allow them to make representations. The same goes for non-statutory partnerships, such as the IOM with the police: CRCs will be contractually required to engage in non-statutory partnerships with working arrangements aimed at protecting the public from harm, safeguarding vulnerable adults or potential victims of domestic abuse and promoting service integration. I hope that I can allay any anxiety that may exist in that respect.
	There has been, ironically, little criticism of what this Bill is about. The through-the-gate idea—to change the system to allow there to be support through the process of resettlement and beyond—is generally accepted as highly desirable. That is what this Bill is about; it is accepted that it is not just about cutting costs. I know there was some concern that perhaps there might be some perverse incentive for sentences to send people to prison whom they might not otherwise have sent there—a point made by the noble and learned Lord, Lord Woolf, at an earlier stage—because they would then have the benefit of the support that would now be provided. My answer to that very understandable concern is that, of course, no judge or magistrate would send someone to prison unless they had passed the custody threshold. Furthermore, there are a number of sentencing options by way of community orders which would give offenders the same benefits of support without actually having to send them to prison. The judiciary and Sentencing Council are very much engaged and aware of that possibility, so I hope I can allay that fear.
	It is difficult to understand why there is apparently—so the noble Lord, Lord Ponsonby, says—discontent among the staff, because a deal has been negotiated with the unions. We have been undertaking negotiations with probation trade unions and the employers’ representatives over a national agreement for staff transfer that will protect the terms and conditions of staff transferring to the CRCs or the NPS. Probation trade unions and the Probation Association, which represents trusts, ratified the national agreement on staff transfer on 29 January 2014. Trade unions have also withdrawn all local trade disputes.
	The national agreement offers a very good deal for existing staff, and demonstrates our commitment to fairness by going much further than we are legally required to do. Staff will transfer to the new probation structures with their existing terms and conditions in place. The additional protections set out within the
	agreement include a guarantee of employment in the new probation structures from 1 June 2014, no compulsory redundancies for a period of seven months following share sale and an enhanced voluntary redundancy period of up to 67.5 weeks. Alongside our negotiations, the programme has put in place a dedicated consultative forum for effective engagement with trade unions and employers’ representatives. We will continue to engage closely with trade unions and employers throughout the transition to the new probation structure.
	I want to deal with the anxiety about the pace of these reforms. It is said that they have been going too quickly, although we say that that is not the case. We have drawn significant learning from earlier initiatives and have tested aspects of the reform programme. For example, our experience with the payment-by-results pilots at Her Majesty’s Prisons Peterborough and Doncaster has increased our confidence about designing robust payment-by-results contracts that drive the required behaviours and help generate improved value for money.
	There is a suggestion that we should have piloted the scheme further. I gave this answer to the noble Lord, Lord Beecham, across the Dispatch Box when he asked a question. There is a difficulty about providing different sentencing options in different parts of the country. Nevertheless, we of course accept that it is important to pilot the system to make sure that it will work, and that is what we have done. We have engaged extensively with probation trusts to ensure that their operational expertise informs our approach. Twelve trusts have helped shape our policy approach through five test gates, including trusts that have built significant expertise in payment-by-results approaches and new delivery arrangements in preparation for participating in our planned community payment-by-results process. The pilots tested operational systems, including the risk assessment tool and live systems testing.
	The noble Lord, Lord Ramsbotham, asked: what is the risk if the market fails and some contract package areas do not have sufficient interest? What will the Government do if no bidder meets the required standard? We have a robust and diverse market: 30 bidders passed the prequalifying process in December 2013, representing more than 50 organisations of various types, including the private sector and potential mutuals. I am sure that a number of noble Lords will be well aware of the explosion of interest and innovation available in all sectors to deal with the apparently intractable problem of rehabilitation. It is most important that we should be able to take advantage of that.
	Approximately one-third of the bidders include a potential mutual organisation within their consortium. We have a minimum of three bidders in each contract package area. We will work intensively with bidders during the competition to help them understand our requirements, engage with local stakeholders and understand the issues in their CPAs. We are assessing bids on both quality and price, not simply seeking the lowest-cost provider. In the long term, the best value for money for the taxpayer will come through having rehabilitation providers who can deliver reductions in reoffending.
	In the event that there are no acceptable bids in a CPA, we do not need to award contracts in that area. One of the benefits of our approach is that the CRCs
	will be operating as going concerns in public sector ownership before share sale, and it will be possible for the CRC to continue in public sector ownership for longer if needed, pending further competition.
	There was a suggestion that we had not consulted sufficiently. The list of those consulted is very long, so I am very surprised that that was suggested. It included probation trusts, members of the public, voluntary and charitable organisations, local stakeholders, the judiciary, offenders, victims and the market, including private, PCS, trust fund and social innovators and police and crime commissioners.
	There are many other points that I could make in response to noble Lords’ comments. I hope that the House will forgive me if I do not answer every point, although answers are contained in all the documents that we have provided.
	I am concerned about the nature of the amendment and—to put it this way—at the very least the ambiguity as to what will be required in terms of going before Parliament for even a relatively slight alteration. If that is right—and this is a last-minute amendment—such a provision could bring the probation service to a grinding halt. I know that that is not the intention of the noble Lord but I am concerned that that might be the effect.
	I said in my opening remarks that there was a prize to be had in this Bill. We should not lose sight of that prize. Support for offenders released from short sentences, as part of our wider plans to reform the supervision of all offenders in the community, will change the lives of thousands of people. It will reduce the 85,000 crimes that those in this group commit within a year of leaving custody. It will also provide long-overdue support to some of the most vulnerable people in our criminal justice system, who are affected disproportionately by mental health issues, by lack of education or training and by drug and alcohol abuse.
	We need to get on with the changes in the Bill to make that difference. I come back to the recent speech of the Lord Chief Justice that I quoted in my opening remarks, in which he said that,
	“we simply do not have that luxury of time. The financial imperative that is part and parcel of the recasting of the State does not give us the time to take such an approach”.
	We have not rushed this change. However, we must move on. Most of all, we have the need to reduce the number of victims who suffer as a result of our current reoffending rates. I hope that the House will give its support to Commons Amendment 1, just as it gave its strong support to the Bill at Second Reading.

Lord Ramsbotham: My Lords, I am grateful to the Minister for the care that he has taken to sum up. I am very grateful to all those noble Lords who have contributed to this short debate. If I may start at the very end of the Minister’s comments, the last thing that we want is to bring the probation service to an end. Probation is far too important a public service to be risked in that way. The very last thing that any ex-Chief Inspector of Prisons would want is a failure to continue to improve the provision of proper services to offenders that
	enable their rehabilitation into the community and the prevention of reoffending, whether that involves the Prison Service or the probation service.
	I listened with great care to all the points the Minister made. If there is just one point I would like to make—because it comes up over and over again and it is inaccurate—it is that to quote the Peterborough experiment in this situation is false. It is not a probation experiment: it is a prison and it is not funded by the companies that are taking the risk. It is funded by social impact bonds. Therefore, it is entirely false to quote it. I wish that that would stop because it distorts arguments.
	I accept that there are all sorts of processes that the Minister has described: meetings, papers, discussions and so on. However, that has not been the same from the start. Those who were concerned about the morale and the worry of members of the probation service should think back. The loss of trust and goodwill in the Government—those were two of the saddest words I heard used by the probation service as to what had happened—was because, in the early stages, and from June onwards, they were not kept informed. Indeed, there were several complaints, when members of staff were allocated either to the National Probation Service or community rehabilitation companies, that they had not been told why they had been allocated. As a soldier, I find that man management is something that has been drummed into me, and I do not regard that as man management. It is extremely unfortunate if you lose the support of those whom you are seeking to lead.
	I agree that it is essential that we do something about the reoffending rate, but I am afraid that what the Minister has outlined to the House is, as I said at the beginning, long on aspiration but short on confirmation that this is achievable. I remember a definition of “affordable” that I was taught a long time ago by a former head of the Army for whom I worked. He said, “There are two definitions of affordable: can you afford it, and can you afford to give up what you’ve got to give up in order to afford it?”. I submit that a whole raft of structures dealing with offenders has enabled the probation service to reduce the reoffending rate among the people for whom it is currently responsible, who are being put at risk by what is happening now. I do not believe that the victims and the others to whom the Minister referred can afford to have the degree of public protection reduced.
	As the Minister said, the Bill is not really about the subject that we have been discussing. He mentioned the 20 hours in this House and the 26 hours in the Commons on the subject, but in fact those debates were not about this subject; virtually every one of those hours was filled with amendments and questions put down by Members seeking information. They were not deliberate discussions introduced by the Government to explain what was going on. That is why, as I say, the purpose of my amendment is to try to ensure that this particular measure, which has such important public protection involvement, should be given true scrutiny by all the people who feel so passionately about what could and should be done for both offenders and their victims.
	I fear that, despite all that has been said, I do not believe that this House could responsibly allow the Bill to go forward at this stage, because too much is still unknown about its actual delivery possibilities. Therefore I wish to test the opinion of the House.

Division on amendment to the Motion.
	Contents 243; Not-Contents 263.
	Amendment to the Motion disagreed.

Motion on Amendment 1 agreed.
	Motion on Amendments 2 to 17
	 Moved by Lord Faulks
	That this House do agree with the Commons in their Amendments 2 to 17.
	2: Clause 3, page 3, line 2, leave out “an officer of a provider of probation services” and insert “a person”
	3: Clause 3, page 3, line 5, at end insert—
	“( ) In relation to a person subject to supervision requirements under this section following a sentence of detention under section 91 of the Sentencing Act, the supervisor must be—
	(a) an officer of a provider of probation services, or
	(b) a member of the youth offending team established by the local authority in whose area the offender resides for the time being.
	( ) In relation to any other person, the supervisor must be an officer of a provider of probation services.”
	4: Clause 5, page 5, line 13, at end insert—
	“( ) In subsection (2)(c), omit “if the offender is under the age of 18 years at the date of release,”.”
	5: Clause 6, page 5, line 41, leave out “264A” and insert “264B”
	6: Clause 6, page 6, line 13, leave out “After that section” and insert “Before section 265 (and the italic heading before it)”
	7: Clause 6, page 6, line 14, leave out “264A” and insert “264B”
	8: Clause 6, page 6, line 31, at end insert—
	“( ) In section 249(3) (duration of licence)—
	(a) for “sections” substitute “section”, and
	(b) for “and 264(3)” substitute “and sections 264(3C)(a) and 264B”.
	( ) In section 250 (licence conditions), omit subsection (7).”
	9: Clause 7, page 7, leave out lines 44 and 45 and insert—
	“(4) “The supervisor”, in relation to the offender, must be—”
	10: Clause 10, page 9, line 7, at end insert—
	“( ) in subsection (4), for “that period” substitute “the automatic release period”,”
	11: Clause 12, page 10, line 14, leave out subsection (2) and insert—
	“(2) In section 64 (release on licence: drug testing requirements)—
	(a) in subsection (1)(a), omit “for a trigger offence, and”,
	(b) in that subsection, at the end insert “, and
	(c) the Secretary of State is satisfied of the matters in subsection (1A).”,
	(c) after that subsection insert—
	“(1A) Those matters are—
	(a) that the misuse by the person of a specified class A drug or a specified class B drug caused or contributed to an offence of which the person has been convicted or is likely to cause or contribute to the commission of further offences by the person, and
	(b) that the person is dependent on, or has a propensity to misuse, a specified class A drug or a specified class B drug.”,
	(d) in subsection (2), after “conditions” insert “mentioned in subsection (1)(b)”, and
	(e) in subsection (3), after “specified Class A drug” insert “or specified Class B drug”.”
	12: Clause 12, page 10, line 21, leave out subsections (4) and (5)
	13: Clause 13, page 11, line 16, leave out “imposed on the offender’s release” and insert “mentioned in subsection (1)(b)”
	14: After Clause 13, insert the following new Clause—
	“Drug testing and appointments: offenders transferred within the British Islands
	(1) Schedule 1 to the Crime (Sentences) Act 1997 (transfer of prisoners within the British Islands) is amended as follows.
	(2) In paragraph 8 (restricted transfers from England and Wales to Scotland)—
	(a) in sub-paragraphs (2)(aa) and (4)(aa), for “and 64” substitute “, 64 and 64A”, and
	(b) at the end insert—
	“(7) Sections 64 and 64A of the Criminal Justice and Court Services Act 2000 (release on licence etc: drug appointments), as applied by sub-paragraph (2) or (4) above, have effect as if any reference to an officer of a provider of probation services were a reference to a
	relevant officer as defined by section 27(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993.”
	(3) In paragraph 9 (restricted transfers from England and Wales to Northern Ireland)—
	(a) in sub-paragraphs (2)(aa) and (4)(aa), for “and 64” substitute “, 64 and 64A”, and
	(b) after sub-paragraph (5) insert—
	“(5A) Sections 64 and 64A of the Criminal Justice and Court Services Act 2000 (release on licence etc: drug appointments), as applied by sub-paragraph (2) or (4) above, have effect as if any reference to an officer of a provider of probation services were a reference to a probation officer.””
	15: Clause 15, page 13, line 23, at end insert “, such as restorative justice activities.
	(7A) For the purposes of subsection (7)(b) an activity is a restorative justice activity if —
	(a) the participants consist of, or include, the offender and one or more of the victims,
	(b) the aim of the activity is to maximise the offender’s awareness of the impact of the offending concerned on the victims, and
	(c) the activity gives a victim or victims an opportunity to talk about, or by other means express experience of, the offending and its impact.
	(7B) In subsection (7A) “victim” means a victim of, or other person affected by, the offending concerned.”
	16: Clause 23, page 19, line 6, at end insert—
	“( ) So far as sections 20, 21 and 22 confer power to make provision amending or otherwise relating to Schedule 1 to the Crime (Sentences) Act 1997, they also extend to the Channel Islands.”
	17: Clause 23, page 19, line 13, at end insert—
	“( ) The power conferred by paragraph 19 of Schedule 1 to the Crime (Sentences) Act 1997 (power to extend to Isle of Man) is exercisable in relation to any amendment of that Act that is made by this Act.”

Lord Faulks: My Lords, in moving Amendment 2, I shall speak also to Amendments 3 to 17 and 19 to 25. Although this is a relatively large group of amendments, most make minor or technical changes to the Bill and I will try to deal with them as concisely as I can.
	I will start with the most noteworthy amendments in this group. Amendment 15 focuses on restorative justice. As I said earlier, I know that there is support across the House for the important role that restorative justice can play both in helping victims to move on from crime and in rehabilitating offenders. The amendment makes explicit that rehabilitative activities carried out under a community order, suspended sentence order or post-sentence supervision can include restorative justice. Noble Lords may already have spotted that this amendment is very similar to one originally tabled by the noble and learned Lord, Lord Woolf. Having debated the issue once again in the other place, the Government have been persuaded that it would be helpful to make explicit in the Bill our intention that rehabilitative activities can include restorative justice activities. This reflects the Government’s desire to see much greater use of restorative justice in appropriate cases. I pay tribute to the noble and learned Lord for first raising this issue and I hope that your Lordships’
	House will welcome this statutory foundation for the use of restorative justice as part of the rehabilitation offered to offenders.
	Amendments 2, 3, 4, 9 and 22 also pick up on an issue first raised in your Lordships’ House, this time by my noble friend Lady Linklater. Together the amendments deal with young offenders who are imprisoned for serious offences as a juvenile but are then released after they have turned 18. The Bill provides that this group of offenders, like others released from short sentences, will receive 12 months of supervision after release. The amendments make it clear that this supervision can be delivered either by an adult probation provider or by a youth offending team—YOT—as the Bill already provides for detention and training orders. There will be circumstances where a YOT may be better placed to deal with the needs of a young adult offender and it is absolutely right that the Bill should give flexibility to allow for this. In that way we can avoid the cliff edge of a sudden transition from youth to adult services. Again, I pay tribute to my noble friend for having championed this issue during the Bill’s original passage through the House.
	Amendments 11, 12, 19 and 20 focus on drug testing requirements imposed as part of licence or the new post-release supervision period. Currently, an offender released on licence can be required to submit to compulsory testing in cases where the offender’s conviction offence is on a trigger list. The trigger offences are those crimes that are most likely to be linked to misuse of drugs. They include theft and fraud offences as well as drug offences.
	Since the introduction of the Bill, we have looked in more detail at the evidence on drug use by prisoners in the Government’s Surveying Prisoner Crime Reduction survey. It suggests, as one might expect, that there is a strong correlation between prisoners who report use of class A or class B drugs before sentence and those who go on to reoffend. However, it also suggests that using the trigger offence as a filter omits around half of all prisoners who are class A drug users and the majority of those who are class B drug users. In short, where an offence is not on the trigger list but is linked to the offender’s use of illegal drugs, there is no power to require the offender to take drug tests where that would support their rehabilitation. Similarly, in a scenario where a persistent offender who is abusing drugs commits an offence that this time happens not to be on the trigger list, there is no testing power either after they are released from custody.
	These amendments replace the trigger offence threshold with a new, two-limbed test: first, the offender has a propensity to misuse specified class A or B drugs; and, secondly, the misuse by the offender of any specified class A or B drug caused or contributed to any offence of which he has been convicted, or is likely to cause or contribute to the commission of further offences. That mirrors the threshold in place for the drug appointment requirement also contained within the current Bill. It continues to provide safeguards to ensure that testing requirements are not imposed in inappropriate cases.
	Amendments 14, 16, 17, 21, 24 and 25 collectively allow for the transfer of the post-sentence supervision period created by the Bill to Scotland, Northern Ireland
	and other UK jurisdictions. Currently, terms of imprisonment and associated licence periods after release can be transferred to and from UK jurisdictions under provisions in the Crime (Sentences) Act 1997. That can happen on a restricted basis, where the sentencing provisions of the exporting jurisdiction apply in the receiving jurisdiction, or it can happen on an unrestricted basis, where the offender transfers on to an equivalent sentence in the receiving jurisdiction’s legislation. This gives flexibility for both the exporting and receiving jurisdiction to agree a transfer in the way that is most appropriate for an individual case.
	These amendments make the necessary changes to the law to allow for post-sentence supervision, the supervision default order that is available as a sanction for breach of that supervision and the new drug appointment requirement to be transferred to other UK jurisdictions. The Government have worked very closely with the Scottish Government and the Northern Ireland Executive to agree the detail of these amendments. We have agreed with both Administrations that we will work with them in advance of commencement to review the existing operational guidance that exists on transfer of sentences. The existing position, where all transfers are agreed between the relevant jurisdictions, and where jurisdictions retain the right to refuse transfers, will continue.
	Finally, Amendments 5 to 8, 10, 13 and 23 are technical changes to the clauses of the Bill that deal with consecutive sentences, drug appointments and fixed-term recall. They simply make clarifications to the way in which the clauses are drafted rather than any changes of substance. I can provide further details if any noble Lord has a particular question about them. However, to keep our proceedings concise, at this point I beg to move.

Lord Beecham: My Lords, I am happy to confirm the Opposition’s support for these amendments and I am grateful to the Minister for his explanation of them.
	Motion agreed.
	Motion on Amendment 18
	 Moved by Lord Faulks
	That this House do agree with the Commons in their Amendment 18.
	18: Clause 24, page 19, line 25, leave out subsection (2)

Lord Faulks: My Lords, Amendment 18 removes the privilege amendment that your Lordships’ House added to the Bill before sending it to the other place. I beg to move.
	Motion agreed.
	Motion on Amendments 19 to 25
	 Moved by Lord Faulks
	That this House do agree with the Commons in their Amendments 19 to 25.
	19: Schedule 1, page 21, line 26, leave out paragraph (a) and insert—
	“(a) the Secretary of State is satisfied of the matters in subsection (2A),”
	20: Schedule 1, page 21, line 30, at end insert—
	“(2A) Those matters are—
	(a) that the misuse by the offender of a specified class A drug or a specified class B drug caused or contributed to an offence of which the offender has been convicted or is likely to cause or contribute to the commission of further offences by the offender, and
	(b) that the offender is dependent on, or has a propensity to misuse, a specified class A drug or a specified class B drug.”
	21: Schedule 3, page 27, line 23, at end insert—
	“Crime (Sentences) Act 1997 (c. 43)
	A1 Schedule 1 to the Crime (Sentences) Act 1997 (transfer of prisoners within the British Islands) is amended as follows.
	A2 (1) Paragraph 6 (effect of transfers: preliminary) is amended as follows.
	(2) In sub-paragraph (2)(b), for “and possible recall following his release” substitute “, possible recall following release and any supervision default order”.
	(3) In sub-paragraph (2)(c), for “and possible recall” substitute “, possible recall and any supervision default order”.
	(4) In sub-paragraph (3), at the end insert—
	“(c) in relation to a person who is supervised under section 256AA of the 2003 Act, being ordered to be committed to prison or detention for failure to comply with a requirement imposed under that section or by a supervision default order;
	(d) in relation to a person who is supervised under section 256B of the 2003 Act, being ordered to be detained for failure to comply with a supervision requirement imposed under that section.”
	(5) In sub-paragraph (4), at the appropriate place insert—
	““supervision default order” has the meaning given in section 268(1) of the 2003 Act;”.
	A3 (1) Paragraph 8 (restricted transfers from England and Wales to Scotland) is amended as follows.
	(2) In sub-paragraph (2)(a)—
	(a) for “264A” substitute “264B”,
	(b) after “267B of” insert “, and Schedules 19A, 20A and 20B to,” and
	(c) after “104” insert “and 106B”.
	(3) In sub-paragraph (4)(a)—
	(a) for “264A” substitute “264B”,
	(b) after “267B of” insert “, and Schedules 19A, 20A and 20B to,” and
	(c) after “104” insert “and 106B”.
	(4) In sub-paragraph (6)(f), for “paragraphs (b) and (c)” substitute “paragraph (c)”.
	(5) At the end (after the sub-paragraph (7) inserted by section (Drug testing and appointments: offenders transferred within the British Islands) of this Act) insert—
	“(8) The supervision provisions, as applied by sub-paragraph (2) or (4), have effect—
	(a) as if any reference to something listed in the first column of the Table in sub-paragraph (10) were a reference to whatever is opposite it in the second column of that Table,
	(b) with the modifications in sub-paragraph (11), and
	(c) in a case falling within section 106B of the Powers of
	Criminal Courts (Sentencing) Act 2000, with the further modifications in sub-paragraph (12),
	(and see also paragraphs 8A, 19A and 19B).
	(9) In this paragraph “the supervision provisions” means—
	(a) sections 256AA to 256E of, and Schedule 19A to, the 2003 Act,
	(b) the provisions of the 2003 Act mentioned in section 256AC of, and Schedule 19A to, that Act, as applied by that section and that Schedule, and
	(c) section 106B of the Powers of Criminal Courts (Sentencing) Act 2000.
	(10) The references mentioned in sub-paragraph (8)(a) are—
	
		
			 TABLE 
			 Reference Substituted reference 
			 Crown Court  Justice of the peace  Local justice area  Magistrates’ court  Officer of a provider of probation services  Summons  Young offender institution High Court of Justiciary  Sheriff court  Local government area within the meaning of the Local Government etc (Scotland) Act 1994  Sheriff court  Relevant officer as defined by section 27(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993  Citation  Young offenders institution provided under section 19(1)(b) of the Prisons (Scotland) Act 1989 
		
	
	(11) The modifications mentioned in sub-paragraph (8)(b) are—
	(a) section 256AA(2)(b) of the 2003 Act has effect as if it also referred to a licence under the Prisons (Scotland) Act 1989 or the Prisoners and Criminal Proceedings (Scotland) Act 1993,
	(b) section 256AC(7)(b) of the 2003 Act has effect as if for “the Secretary of State” there were substituted “the Scottish Ministers”,
	(c) paragraph 2 of Schedule 19A to the 2003 Act has effect as if—
	(i) sub-paragraph (d) referred only to section 215(1) and (2) of the 2003 Act, and
	(ii) sub-paragraph (e) were omitted,
	(d) paragraph 3 of Schedule 19A to the 2003 Act has effect as if, after sub-paragraph (7), there were inserted—
	“(7A) Section 218(4)(a) applies as if for the words “has been notified by the Secretary of State” there were substituted “is satisfied”,
	(e) paragraph 7 of Schedule 19A to the 2003 Act has effect as if—
	(i) in paragraph 7(1), for “the supervisor must refer the matter to the enforcement officer” there were substituted “the supervisor may cause an information to be laid before a sheriff court in respect of the person’s failure to comply with the requirement”, and
	(ii) sub-paragraphs (2) to (5) were omitted, and
	(f) paragraph 12(3) of Schedule 19A to the 2003 Act has effect as if for “makes a community order or suspended sentence order” there were substituted “imposes any other sentence”.
	(12) The further modifications mentioned in sub-paragraph (8)(c) are that section 106B of the Powers of Criminal Courts (Sentencing) Act 2000 has effect as if—
	(a) in subsection (4), for paragraph (b) there were substituted a reference to an officer of a local authority constituted under the Local Government etc (Scotland) Act 1994 for the local government area in which the offender resides for the time being, and
	(b) after subsection (3) there were inserted—
	“(3A) Sections 256AA(3) and (6), 256AB(1) and 256E(2) have effect as if the references to the Secretary of State were references to the Scottish Ministers.”
	A4 After paragraph 8 insert—
	“Restricted transfers between England and Wales and Scotland: further provision about supervision default orders
	“8A (1) This paragraph applies if—
	(a) a person’s supervision is transferred to Scotland under paragraph 4 of this Schedule by means of a restricted transfer or transferred back to England and Wales under paragraph 7 of this Schedule, and
	(b) at the time of the transfer, or transfer back, a supervision default order is in force in respect of the person.
	(2) The supervision default order has effect as if, at the time of the transfer or transfer back, it specified the relevant area in which the person resides or proposes to reside in the new jurisdiction (rather than a relevant area in the jurisdiction from which the person is transferring).
	(3) The court acting for that relevant area in the new jurisdiction may amend the supervision default order to specify that area.
	(4) In this paragraph—
	“relevant area” means—
	(a) in England and Wales, a local justice area, and
	(b) in Scotland, a local government area within the meaning of the Local Government etc (Scotland) Act 1994;
	“supervision default order” has the meaning given in section 268(1) of the 2003 Act.”
	A5 (1) Paragraph 9 (restricted transfers from England and Wales to Northern Ireland) is amended as follows.
	(2) In sub-paragraph (2)(a)—
	(a) for “264A” substitute “264B”,
	(b) after “267B of” insert “, and Schedules 20A and 20B to,” and
	(c) after “104” insert “and 106B”.
	(3) In sub-paragraph (4)(a)—
	(a) for “264A” substitute “264B”,
	(b) after “267B of” insert “, and Schedules 20A and 20B to,” and
	(c) after “104” insert “and 106B”.
	(4) Omit sub-paragraph (8).
	(5) At the end insert—
	“(9) The supervision provisions, as applied by sub-paragraph (2) or (4), have effect—
	(a) as if any reference to something listed in the first column of the Table in sub-paragraph (11) were a reference to whatever is opposite it in the second column of that Table, and
	(b) with the other modifications in sub-paragraph (12).
	(10) In this paragraph “the supervision provisions” means—
	(a) sections 256AA to 256AC, 256D and 256E of the 2003Act, and
	(b) section 106B of the Powers of Criminal Courts (Sentencing) Act 2000.
	(11) The references mentioned in sub-paragraph (9)(a) are—
	
		
			 TABLE 
			 Reference Substituted reference 
			 Crown Court  Justice of the peace  Information  Local justice area  Magistrates’ court  Officer of a provider of probation services  Young offender institution County court  Lay magistrate  Complaint  Petty sessions district  Court of summary jurisdiction  Probation officer  Young offender centre 
		
	
	(12) The other modifications mentioned in sub-paragraph (9)(b) are—
	(a) section 256AA(2)(b) of the 2003 Act has effect as if it also referred to—
	(i) a custody probation order or licence under Part 2 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160) (N.I. 24), and
	(ii) a licence under the Northern Ireland (Sentences) Act 1998, Part 3 of the Life Sentences (Northern Ireland) Order 2001 (S.I. 2001/2564 (N.I. 2)) or Chapter 4 of Part 2 of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)),
	(b) section 256AC of the 2003 Act has effect as if subsections (4)(c), (5) and (10) (provision for supervision default orders) were omitted, and
	(c) subsection (7)(b) of that section has effect as if for “the Secretary of State” there were substituted “the Department of Justice in Northern Ireland”.”
	A6 (1) Paragraph 15 (unrestricted transfers: general) is amended as follows.
	(2) In sub-paragraph (4A), for “This paragraph has” substitute “Sub- paragraphs (3) and (4) have”.
	(3) After sub-paragraph (4A) insert—
	“(4B) A person who is subject to a period of supervision of a type or length which could not have been imposed on an offender in the place to which the person has been transferred is to be treated for the relevant purposes as the receiving authority may direct.
	(4C) In sub-paragraph (4B), “the receiving authority” means—
	(a) in relation to a person transferred to Scotland, the Scottish Ministers,
	(b) in relation to a person transferred to Northern Ireland, the Department of Justice in Northern Ireland, and
	(c) in relation to any other person, the Secretary of State.” A7 After paragraph 19 insert—
	“Service of process issued in Scotland
	19A (1) Section 4 of the Summary Jurisdiction (Process) Act 1881 (service in England and Wales of Scottish process etc) applies to any process issued by a court in Scotland under the supervision provisions.
	(2) “The supervision provisions” means the provisions listed in paragraph 8(9), as they are applied by paragraph 8(2) or (4).
	Electronic monitoring in Scotland
	19B (1) Section 245C of the Criminal Procedure (Scotland) Act 1995 (remote monitoring), and regulations under that section, apply in relation to the electronic monitoring of compliance with a curfew requirement in a supervision default order imposed under the supervision provisions as they apply in relation to the remote monitoring of compliance with a restriction of liberty order.
	(2) “The supervision provisions” means the provisions listed in paragraph 8(9), as they are applied by paragraph 8(2) or (4).”
	A8 In paragraph 20(1) (interpretation), for the definition of “supervision” substitute—
	““supervision” means—
	(a) supervision under an order made for the purpose,
	(b) supervision under a detention and training order,
	(c) in the case of a person released from prison on licence, supervision under a condition contained in the licence,
	(d) supervision under section 256AA of the Criminal Justice Act 2003 (supervision after end of sentence), including supervision under that section as applied by section 106B of the Powers of Criminal Courts (Sentencing) Act 2000, or
	(e) supervision under section 256B of the Criminal Justice Act 2003 (supervision after release of certain young offenders serving less than 12 months).””
	22: Schedule 3, page 27, leave out lines 33 to 35 and insert—
	“( ) For paragraph (i) substitute—
	“(i) post-release supervision in accordance with a licence under section 31 of the Crime (Sentences) Act 1997 or section 250 of the Criminal Justice Act 2003 of a person sentenced to detention under section 90 or 91 of the Powers of Criminal Courts (Sentencing) Act 2000, section 226, 226B or 228 of the Criminal Justice Act 2003 or section 209, 218, 221, 221A or 222 of the Armed Forces Act 2006;
	(ia) post-release supervision under section 256B of the Criminal Justice Act 2003;
	(ib) supervision under section 256AA of the Criminal Justice Act 2003 of a person sentenced to detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 or section 209 of the Armed Forces Act 2006;”.”
	23: Schedule 3, page 29, line 20, leave out “264A(1)” and insert “264B(1)”
	24: Schedule 3, page 29, line 23, at end insert—
	“15A(1) Section 302 (execution of process between England and Wales and Scotland) is amended as follows.
	(2) After “under—” insert—
	“section 256AC(1) or (3),
	section 256C(1) or (3),”.
	(3) Omit the “or” before “paragraph 6(2) or (4)”.
	(4) After “Schedule 12” insert “or
	“paragraph 8(1) or 10(5) of Schedule 19A,”.”
	25: Schedule 7, page 37, line 25, leave out “and 13” and insert “, 13 and (Drug testing and appointments: offenders transferred within the British Islands)”
	Motion agreed.

Anti-social Behaviour, Crime and Policing Bill
	 — 
	Commons Amendment

Motion A
	 Moved by Lord Faulks
	That this House do not insist on its Amendment 112 and do agree with the Commons in their Amendment 112A in lieu.
	112A: Page 121, line 24, leave out “was innocent of” and insert “did not commit”

Lord Faulks: My Lords, the House will recall that Amendment 112 changed the definition of a miscarriage of justice for the purposes of paying compensation. At the heart of all our discussions lies the question: what is a miscarriage of justice? It is a strong term, which cries out for proper definition. There is general agreement, including from the Grand Chamber of the European Court of Human Rights in Strasbourg, that it is more than a simple acquittal. The fact that someone was tried and the evidence proved insufficient to convince a jury of their guilt does not mean that a miscarriage of justice took place. Nor do the Government believe that someone whose conviction was overturned because changes to the evidence against them, such as developments in expert knowledge, made that conviction unsafe has necessarily suffered a miscarriage of justice. Although following the quashing of a conviction someone will be presumed innocent, there may be a retrial on the basis of the remaining evidence, at which there is the potential for a new conviction. Justice cannot be said, in these cases, to have miscarried.
	The Government firmly believe that a miscarriage of justice can be said to have occurred where someone who was innocent was convicted. The question therefore becomes: how do you know that happened? In our previous debates, some noble Lords have asked how applicants for compensation can be expected, sometimes years after their wrongful conviction, to prove their innocence. The answer is that they will not. In all cases, the Court of Appeal will have already considered a new fact—the new fact that led to the quashing of the conviction—and this new fact will exonerate those who are truly innocent. These are the people who have truly suffered a miscarriage of justice: people who were convicted because the fact which now exonerates them was unknown or unrecognised, be it the proof that they were somewhere else, the DNA that convicts a different perpetrator or the evidence that the offence simply did not take place. It is the nature of the new fact that demonstrates innocence, and the applicant for compensation does not need to provide any further evidence to prove themselves eligible for compensation within the statutory test.
	The Government remain firmly of the view that the definition of a miscarriage of justice, which was inserted by Amendment 112 in your Lordships’ House, does not provide the necessary clarity. It is similar, although not identical, to the wording used by the noble and learned Lord, Lord Phillips, in the Supreme Court’s judgment in Adams and, as he said:
	“This test will not guarantee that all those who are entitled to compensation are in fact innocent”.
	We believe that the test should guarantee exactly that, because we believe that only those who are shown not to have committed the offence for which they were convicted have truly suffered a miscarriage of justice and deserve recognition and recompense for that. However, I am sure that none of your Lordships wants those who are in fact guilty to receive compensation.
	The amendment adopted by your Lordships on Report would have required the new fact to show,
	“conclusively that the evidence against the person at trial is so undermined that no conviction could possibly be based on it”.
	Careful reading of this proposed definition makes it clear how difficult a burden this places on the Secretary of State. It would require him, when considering an application for compensation, to look not just at the new fact but at the whole of the evidence, and to decide whether there is any possibility that a conviction might result. The aim of the Supreme Court in the Adams judgment was both clarity and fairness but, with all due respect, I suggest that it did not in fact achieve either. Rather, it required an adjudication from the Secretary of State considerably more complex than that which we are now proposing.
	During the debate that took place on the previous occasion when this matter was before your Lordships’ House, the noble Lord, Lord Pannick, indicated that it was very unsatisfactory that the Secretary of State should be asked to pronounce on guilt or innocence. I am not sure that, on that occasion, I gave a sufficient response. Let me do so now.
	The applicant will have to satisfy the Secretary of State that he is eligible for compensation within the meaning of the statutory test. If your Lordships accept the government amendment, the word “innocence” is removed altogether from his consideration of the application. Let me make it perfectly clear that the difference between what we now suggest should be part of the Bill and what was originally there is only a question of words. It would not result in a different determination in any one case. But words matter in this context because there is a deep, visceral unease about anything that may be said to run contrary to the presumption of innocence—hence the changing of the words.
	However, the question—I revert to the Secretary of State’s function—is what he will use to decide whether an applicant is eligible. That is the question. The Court of Appeal will have provided a detailed judgment explaining why, so long after a conviction, a new fact has enabled it to conclude that the conviction should be quashed. In my experience of reading the decisions of the Court of Appeal Criminal Division, the basis on which a conviction is overturned is always made perfectly clear. The Secretary of State will simply look at that judgment and be able to decide, in accordance with a straightforward test that we are proposing by this amendment, whether an applicant is entitled to compensation. It is clear that the Court of Appeal will have set out in detail why it has come to that conclusion and whether it fits the clear definition that we suggest is appropriate.
	The test proposed in your Lordships’ House on Report is also highly ambiguous. What one person believes is evidence sufficient possibly to bring about a conviction, another may argue could never have had such a result. The effect of this would undoubtedly lead applicants to contest decisions denying them compensation. Applicants denied compensation following the Adams judgment have, in some cases, spent years attempting unsuccessfully to get those decisions overturned by the courts. Indeed, as recently as 27 February, the Court of Appeal rejected three further cases, so the effect of the test is clear to this extent: it will inform more litigation. We do not
	believe this is fair, either on applicants or on the taxpayer, who often funds both sides in this fruitless litigation.
	Our objections to Amendment 112 are firmly based on points of principle; this is not primarily about saving money. That said, here as elsewhere, we must deliver value for money for the taxpayer and, accordingly, it is in no one’s interests for us to be spending at least £50,000 contesting each decision to refuse compensation. That, by the way, is an estimate of the Government’s average costs per case. The taxpayer also usually funds via legal aid the unsuccessful applicant’s costs of litigation, which, in many cases, are considerably higher than the Government’s. The total cost of each unsuccessful judicial review can, therefore, run into hundreds of thousands of pounds. If we maintain an ambiguous definition, we expect the flow of judicial reviews to continue, however many times the court ultimately concludes that the Secretary of State’s interpretation was the correct one. We believe that a simpler test, which focuses only on the new fact and what that new fact shows, will make it easier for all concerned, while ensuring that those who have truly suffered a miscarriage of justice will be quickly compensated for it. That said, we have listened to the concerns that noble Lords raised about how the clause was originally drafted.
	The rationale for the presumption of innocence is that it is better that 99 guilty men go free than that one innocent man is convicted. That stems from our abhorrence of the idea of an innocent man losing his liberty. Here we are concerned not with liberty but with compensation or, in other words, money, so the considerations are different.
	We recognise the difficulty around the use of the term “innocent”. The European Court of Human Rights has suggested that the presumption of innocence is engaged when considering whether a miscarriage of justice has taken place. All those who have not been convicted, or whose conviction has been quashed, are presumed innocent. To avoid any implication that this is not respected, or that the Secretary of State intends to adjudicate on this question, Amendment 112A uses different language. The issue now is not whether a person is considered innocent or guilty. The issue is whether a miscarriage of justice took place when the applicant was first convicted. This will be true only if the applicant did not commit the offence, if that is what the new fact shows. That is what Amendment 112A would achieve.
	Your Lordships’ House has quite properly asked the House of Commons to examine this issue again. It has now done so and has clearly resolved both to reject Amendment 112 and to agree the government amendment in lieu. Now that the elected House has reaffirmed its view on this matter, I urge your Lordships not to insist on their amendment, to reject Motion A1 and to let this Bill now pass. I beg to move.
	Motion A1
	 Moved by Lord Pannick
	As an Amendment to Motion A, leave out from “House” to end and insert “do insist on its Amendment 112”

Lord Pannick: My Lords, on Report your Lordships’ House supported an amendment to include in this Bill the criteria for the payment of compensation for a miscarriage of justice based on the judgment of the noble and learned Lord, Lord Phillips of Worth Matravers, speaking for the majority of the Supreme Court in the Adams case. The noble and learned Lord, Lord Phillips, himself spoke in favour of my Amendment 112 on Report. He has asked me to express his regret that he is unable to be in his place today to support Motion A1 because he is abroad.
	We are concerned today with cases where an applicant has been wrongly convicted of a criminal offence. In many of these cases, he or she spent years in prison before the Court of Appeal overturned that conviction. Compensation is not paid, and rightly so, simply because the judge made an error of law or there was some other technical basis for the successful appeal to the Court of Appeal. The applicant must show, on the test stated by the Supreme Court—the test approved by your Lordships’ House—that a new fact has emerged that so undermines the prosecution evidence that no conviction could possibly be based on it. That is a very difficult test to satisfy, and rightly so.
	I continue to believe that the test of the noble and learned Lord, Lord Phillips, for the Supreme Court is preferable to the Government’s approach, approved by the other place, and that the amendment approved by the other place, with great respect to them, is wrong in principle and would have very damaging consequences. That was true of the original criteria set out in this Bill and rejected by your Lordships’ House on Report—the criteria that the applicant must prove beyond a reasonable doubt that he or she is innocent of the offence—and it remains true of the variation introduced by the Government in the other place, that the applicant must prove beyond a reasonable doubt that he or she did not commit the offence. The Minister has very fairly acknowledged in his opening remarks that there is no substantive difference between proof that you are innocent and proof that you did not commit the offence.
	I will first seek to explain why I say that the Government’s approach will have very damaging consequences. The Minister has suggested today that the judgment of the Court of Appeal will be the only evidence which the Secretary of State needs to see in order to form a judgment on whether the applicant did or did not commit the offence. However, the Court of Appeal very rarely says whether it thinks that a defendant has proved that he or she did not commit the crime. That is not the role of the Court of Appeal. It focuses on whether a new or newly discovered fact fatally undermines the case that is presented by the prosecution. The test of the noble and learned Lord, Lord Phillips, is consistent with what the Court of Appeal does. It has never been the role of Ministers in our jurisdiction—rightly so—to pronounce on whether a person has committed a crime.
	The cases in which compensation is claimed for a miscarriage of justice will often be the most controversial and sensitive. When an appeal has been allowed in the Court of Appeal on the basis that the prosecution case has been fatally undermined by a new or newly discovered fact, and when the defendant is then released from
	prison, often many years after their wrongful conviction, it is very unwise for legislation to state that it is then for the Secretary of State to pronounce on whether she thinks that the defendant has proved that they did not commit the crime. I can think of nothing more likely to keep open the sore of a regrettable miscarriage of justice, and nothing more likely to involve a politician in controversial matters of criminal responsibility.
	The Minister suggested that the Government’s approach would promote certainty in the law. I have to say to him that, far from promoting certainty, the Government’s approach will inevitably be a recipe for complex, expensive and highly acrimonious litigation. The Minister said that there had been a few cases since the Adams judgment, which, he said, itself suggested that the Adams criteria were uncertain. However, as the Minister recognised, none of those cases has succeeded, and he well knows that members of our profession are quite capable of litigating any statutory definition. I therefore agree with the Government that the Bill should define the criteria for receipt of compensation for miscarriages of justice but I cannot agree that the Government’s wording, approved by the other place, is sensible in practice. It will have disastrous consequences.
	Perhaps I may also say something about the issue of principle because the Minister emphasised this point in his opening remarks. He suggested that only those who are truly innocent should receive compensation for a miscarriage of justice. I say to him with the greatest of respect that that approach is wrong in principle. Our law does not ask people to prove that they did not commit a crime; it is for the state to prove that they did commit a crime. The noble and learned Lord, Lord Hope of Craighead, who I am pleased to see in his place, addressed this point with characteristic clarity at paragraph 97 in his judgment in the Adams case. He said that a person against whom there is no sufficient and admissible evidence on which a conviction can be based should not be the subject of the criminal process in the first place. Therefore, if a new or newly discovered fact fatally undermines the prosecution evidence, it is,
	“right in principle that compensation should be payable”.
	My noble and learned friend added at paragraph 102 that if the evidence against the defendant is conclusively shown to have been completely undermined, then there has been a miscarriage of justice which is as great whether or not the defendant committed the crime because in neither case should the defendant have been prosecuted.
	The Minister emphasised in his opening remarks that these Adams criteria may occasionally result in compensation being paid to a person who may in fact have committed the crime. My noble and learned friend Lord Phillips powerfully answered that point in his judgment in Adams at paragraph 55. He recognised that his test—the test approved by this House on Report—
	“will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt”.
	I commend the analysis of my noble and learned friend Lord Phillips to your Lordships as plainly correct in principle.
	In the other place the Government did not address— far less answer—the concerns about the practical consequences and the issues of principle which I have summarised. I cannot—again, with respect—agree with the attempts by the noble Lord, Lord Faulks, to respond to those points today. This House should invite the other place to think again on such an important issue. I beg to move.

Lord Brown of Eaton-under-Heywood: My Lords, I supported the Government on the clause at Second Reading and again in Committee and on Report. At the risk of wearying your Lordships and displeasing, yet again, those who procured the original amendment of the noble Lord, Lord Pannick, I support the Government again on their proposed amendment and I resist that of the noble Lord, Lord Pannick.
	For my part, I, too, accept that this reformulation is in substance no different from its predecessor. Because it avoids the explicit language of guilt or innocence, it may be regarded in some form as better able to resist what at one stage was suggested to be its vulnerability to challenge under Article 6 of the European Convention on Human Rights.
	I do not propose to repeat all the arguments that I canvassed in support of the Government’s approach at the earlier stages. I now make just three basic points. First, there is all the difference in the world between, on the one hand, a person’s right to be acquitted and thereafter presumed innocent whenever there is any lingering doubt as to his guilt and, on the other hand, the right to monetary compensation for his incarceration pending that eventual acquittal. On Report, the noble Lord, Lord Cormack, reminded us all, and indeed the noble Lord, Lord Faulks, reminds us again, that it is better that 10—the noble Lord, Lord Faulks, says 99—guilty men go free than that one innocent man be convicted. Of course, that is so and it is integral to our criminal justice system, but it by no means follows that it is better that 10, let alone 99, guilty men get financial compensation rather than that one innocent man goes uncompensated. That illustrates the total distinction between the presumption of innocence and the right to go free if there is any doubt at all about the safety of one’s conviction and, on the other hand, the right to monetary compensation for the period of incarceration until that innocence can be established.
	Secondly, the present formulation put forward again by the noble Lord, Lord Pannick, is, as has been explained, essentially that of the majority in the Supreme Court in Adams—a majority of five votes to four. The then Lord Chief Justice, my noble and learned friend Lord Judge, who, alas, cannot be here today, and I were in that minority of four. The majority preferred it to the test of the minority that the claimant should have to establish his innocence. In truth the majority’s formulation is a fudge—indeed, an unprincipled fudge. None of the parties in the case argued in support of it—not even leading counsel who appeared as interveners for Justice. They were all arguing for compensation to be paid to all those whose appeal eventually succeeds.
	Now no one pursues that absolutist view. Of course, under this fudge, compensation would still be required to be paid even to those who, albeit entitled to succeed on their appeals, can nevertheless be seen clearly to have committed the offence.
	I have given various examples of this at earlier stages. Today I shall give just one. Let us suppose that a defendant confesses his guilt and in his confession discloses facts that only the perpetrator of the crime to which he is confessing could have knowledge. Later, however, on a late appeal, he is able to establish that that confession was induced by, for example, a promise that if only he would confess his guilt he would get bail. Once that is established the confession has to be set aside as one induced by guilt, even though it is self-evidently correct as a confession. He is entitled to succeed on his appeal but is he really to be regarded as entitled to compensation, which could run to hundreds of thousands of pounds? I would suggest not.
	My third and final point is on certainty. Again, the noble Lord, Lord Faulks, has made this point. I should have said earlier that, alas, I missed the first few minutes of his speech as it never occurred to me, in common with one or two others, that this point would be reached at the stage that it was. I apologise for that but I think I heard everything that he said that needed to be heard by somebody supporting this case. The proposed formulation is very far from easy to apply. Perhaps a good illustration of that is the tragic case of Sally Clark—a case about which the noble Baroness, Lady Kennedy of The Shaws, spoke more than once at earlier stages of the Bill. It is a case which raises considerable and understandable emotions. On my reading of that case—I believe this to be correct—the Court of Appeal never went further than to say that on the fresh evidence that had come to light a jury might well not have convicted her. It was not said, in the words of the proposed amendment of the noble Lord, Lord Pannick, that the fresh evidence showed—let alone showed “conclusively”—that the evidence against her at trial had been so undermined that no conviction could possibly have been based on it. Maybe, in the light of all the material, the jury would have convicted; maybe it would not.
	If it is said that I am wrong in my understanding of that case, it just goes to show that the proposed formulation will lead, not to the desired clarity and certainty in the law, but to further protracted litigation on this issue. As the Minister said, based on the Court of Appeal judgment, it is perfectly simple for him to form a view —yes or no—on whether, in the light of all the material, this defendant was indeed innocent of the charge and therefore whether or not it was a clear miscarriage of justice in that sense. The elected Chamber rejected this House’s amendment first time round and I respectfully suggest that we should not challenge it again.

Lord Hope of Craighead: My Lords, I had the advantage of listening to the whole of the Minister’s address with great care. I respectfully say that it was very well put across. However, I remain of the view, advanced by the noble Lord, Lord Pannick, that the Commons amendment should not be accepted. I have spoken on this matter on a number of previous occasions, so I will make a few short points.
	I agree entirely with the Minister that the issue before us is what is meant by the phrase “miscarriage of justice”. This still remains in Section 133 of the 1988 Act because in this Bill we are adding a new subsection to try to explain what the basic rule, set out in subsection (1), is all about. Therefore one has to consider how that works out in practice, given the nature of our criminal appeal process. In effect, it is an element of working out the court’s function in the appeal and the position the Secretary of State must take, given the material in the Court of Appeal’s judgment.
	The noble and learned Lord, Lord Brown of Eaton-under-Heywood, has confirmed that the Court of Appeal does not have to ask itself whether the appellant was innocent: it has to consider whether the conviction was unsafe. No one is suggesting that that should be the test applied when working out whether there has been a miscarriage of justice. The problem with the test which the Minister is now suggesting and which is in the Commons amendment is that it is striving for something which is, in nearly every case, almost impossible to demonstrate. I prosecuted for four years in the course of my career at the Bar and secured a number of convictions. It frequently occurred to me that we—by which I mean the jury, the prosecutors and everyone else who was looking on—were not there. It is so difficult to work out what actually happened: one can only proceed on evidence. The Crown’s function is to demonstrate guilt as best it can on the evidence but it is extraordinarily difficult to work out whether somebody did not commit the crime and put it in a positive way in favour of the accused if you did not actually see what happened when the crime was committed. You have to rely on other people to demonstrate that fact. That is the basic problem with the test being suggested.
	In my judgment in the case to which the noble Lord, Lord Pannick, referred, I recorded that when Article 14 of the covenant, from which we take the phrase, was being discussed it was suggested that the test of innocence should be put in to elaborate what was meant by miscarriage of justice, but it was not put in to the final draft. The matter was considered then but it was taken out and we are left with a phrase which we now have to construe and apply.
	Without going on any further, I suggest that a better way of approaching it would be to tie the phrase, as carefully as we can, into the way our criminal process works, in a world where there can rarely be absolute certainty. We cannot achieve mathematical certainty in our system of criminal justice: we are not expected to. Because of that, I suggest we take the practical approach embodied in the phrase proposed by the noble Lord, Lord Pannick. I support his amendment.

Lord Brennan: My Lords, I remind the House that I served for 10 years as an assessor for compensation for miscarriages of justice. That role required me to assess compensation, not to determine eligibility. However, in order to determine compensation I was equipped with the factual basis for the ministerial decision to allow compensation to be awarded.
	We are here faced with a choice between two different ways of seeking to achieve justice, and the key test for this House should be which way better serves the interests of justice. The Lords’ amendment creates a stiff test: you have to show conclusively—it is a tough obstacle—that the evidence was so undermined that no conviction could possibly be based on it. The evidence so undermined is a matter for judicial assessment in this context. Whether it makes a conviction impossible to sustain is a matter for judicial decision. Both the assessment and the decision arise in the process of whether guilt has been established, not whether innocence has been shown.
	Because of that well established system, judges, both at trial and in the Court of Appeal, look at these matters of assessment and decision very carefully. The process is a fundamental part of the system; it is well established. The judges, the lawyers and the legal commentators know what is happening. It accords with what we have traditionally thought to be the best of legal principle in applying our criminal law. A miscarriage of justice is an aberrant product of our criminal law going wrong in its process. The system I have just described has sufficient clarity in its process so that when the test in the Lords’ amendment is applied to it, justice will usually be done if there is a miscarriage of justice.
	What of the government test? The words “innocent” and “did not commit” we can treat as synonymous for the purpose of this argument. The government test involves the Minister looking for material to show innocence from proceedings that were designed to establish guilt. Other than the Criminal Cases Review Commission, of the potential sources the key source of his or her approach will be what happened in court then, or afterwards if there was an appeal, or a newly discovered fact well after that. So the context of the ministerial decision will be outwith our present system.
	Indeed, the Minister will be applying himself or herself to making a quasi-judicial decision: should this person, in justice, be given compensation for this miscarriage of justice? It is a very serious decision most pertinently determined by solid evidence, and from where is he or she to extract it in our present system? The new fact which establishes innocence or that someone did not commit the offence has to be very powerful indeed—for example, irrefutable DNA evidence or a subsequently discovered group of witnesses who prove a rock solid alibi. There are very few sets of circumstances.
	It will be of significance to this House—and I trust to the other place if this goes back to it—that no one on the government side in any debate so far has chosen to illustrate by example how their test would work and why the Lords’ test is not appropriate. Although proceedings before the assessing Minister are confidential, it is open to the applicant to make them public. I shall refer to two public examples which show that the Lords’ test would work in justice and the government test would not.
	The first is the “arms to Iraq” case, in which some of the defendants got to court and no evidence was ultimately offered against them—there never was a trial. Others of those cases were stopped during the trial and in yet more cases there were acquittals.
	The result of that set of circumstances meant that in the ones where no evidence was offered or the judge stopped the trial, there never was an appeal; there never was any new evidence because the scenario was well known. We did what we thought was legal because the government agents and people responsible said that we could do it.
	In those circumstances, with no Court of Appeal judgment, on the test in the Lords’ amendment it is almost certain that those people would have received compensation. If you do not offer any evidence, how can you possibly say that the conviction could be sustained? If the judge stops it on the basis of the Lords’ test, why not give compensation? How could these men “prove their innocence” in the context of the government test?
	There is another very telling example. Many of you will remember the case of Colin Stagg and the murder of Rachel Nickell on Wimbledon Common. She was stabbed to death, with 49 blows, in front of her two year-old child. Stagg was one of many arrested and he was eventually charged. The judge threw the case out at the end of the prosecution case. This was in the mid-1990s and Stagg was vilified in the national press almost from day one. When the judge stopped the case, he went back to Wimbledon and lived by night because he was hounded and harassed in the street by day. He lived a hermit life for years. Eventually the Minister decided, on all the material before him, to grant compensation, and I made an award. It was only a year or two later that someone else, Robert Napper, was arrested for that murder. He pleaded guilty to manslaughter on the grounds of diminished responsibility and was confined to Broadmoor for the rest of his life.
	How can anyone in this House plausibly suggest that Stagg should not have got compensation until someone else was proved to have been the person who killed Rachel Nickell? Who would not regard that as an affront to justice? The Minister at the time, in applying the law on eligibility at the time, gave Stagg an award. Under the Lords’ test he would get such an award today; under the government test he would not—he would have to wait and endure circumstances until someone else was shown to be the murderer.

Lord Brown of Eaton-under-Heywood: My Lords, I just ask my noble friend to agree that, under any test, neither of these cases would qualify for compensation because compensation is payable not on an initial acquittal, a first appeal or an appeal brought in time, but only ever on a late appeal. They would therefore not have qualified anyway: it is only for a restricted group of cases in which they are not included.

Lord Brennan: Now that I am in the same House as the noble Lord and not appearing in front of him as an advocate, I very firmly disagree. Compensation for miscarriages of justice does not depend on a successful appeal. For years, in certain cases, awards have been made without such an appeal. In the examples I have given, no contrary example has been given thus far to show why the other test proposed by the Government should be put forward. I make the following concluding
	submission: the Lords amendment is based on well founded principle—the Adams terminology—arising from a well established system of criminal law and criminal justice. The government test is neither of those things. The Lords amendment better serves the interests of justice and this House should send it back to the Commons for reconsideration by MPs and by the Government in the interim.

Lord Beecham: My Lords, I must first congratulate the noble Lord, Lord Taylor, who managed to escape the onerous task of replying or, indeed, of advocating the Government’s case. The noble Lord, Lord Faulks—the Minister—has, as it were, picked up a dock brief. He comes before the House as a poor man’s lawyer—or, I should say more relevantly, a poor Lord Chancellor’s lawyer.
	It is instructive to consider how the debate on the Government’s proposal played out in the House of Commons. Deep concern and opposition to the original Clause 151 was voiced on all sides of this House in 19 speeches. Speakers included former Law Lords, lawyers of varying experience in this field and non-lawyers. Members may recall in particular the powerful speeches of the noble Lord, Lord Cormack, the noble and learned Lord, Lord Hope, who has addressed us tonight, and my noble friend Lord Brennan, who has also spoken to us, with his long history of involvement with this issue. These and other noble Lords voiced profound misgivings over the Bill’s requirement for those claiming compensation for a miscarriage of justice effectively to have to prove their innocence. I do not need to rehearse the arguments advanced at Second Reading, in Committee, on Report and again today. Only four speeches, other than those from the relevant Minister, supported the Government. Three of these, no less, were made by the eminent former Law Lord, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, from whom we have heard again tonight. The other was made by the noble Lord, Lord Faulks, before his accession to ministerial office. One Member expressed doubts in a speech at Second Reading and did not vote on Report.
	The overwhelming body of opinion in debate in this House—right through the progress of the Bill—was, therefore, opposed to a proposal that was at odds with our historic attachment to the presumption of innocence unless and until guilt is proved beyond reasonable doubt. It was a proposal that, as I have mentioned in previous debates, would save all of £100,000 a year, given the paucity of successful claims—some two a year, as the Government’s own impact assessment made clear.
	The Government have consistently claimed that the law was uncertain: it was not, though the Supreme Court invited the Government and Parliament—having reached a conclusion by a narrow majority in the Adams case—to consider the matter. However, the decision in the Adams case was clear, and the noble Lord, Lord Faulks, was kind enough to advise me yesterday that it has effectively been followed and upheld by the Court of Appeal. Therefore, it was with some astonishment that I read the terms of the government amendment and the debate on it in the House of Commons.
	The Minister, Damian Green, claimed:
	“The Government have taken account of all the points that have been made and all the concerns that have been expressed and our position has changed as a result of the very good debates that have taken place in Committee as well as in the House of Lords”.—[Official Report, Commons, 4/2/2014; col. 163.]
	The change, of course, is to drop the requirement for the claimant to establish that he was innocent of the offence and substitute the requirement to show that “he did not commit” the offence. I do not pretend to understand by what process of jurisprudential alchemy the base metal of proving innocence becomes converted to the gold of establishing that a claimant did not commit the offence. It is a distinction without a difference—an attempt to preserve the Government’s version of legislative maidenly modesty.
	Ministerial sleight of hand, however, did not stop there. The Minister sought to pray in aid the noble and learned Lord, Lord Phillips, who, as the noble Lord, Lord Pannick, has reminded us tonight, actually voted for his amendment. If Mr Green were to be charged with attempting to gain votes by false pretences, I would have to advise him to plead guilty; I think that even the Minister would have to advise him to plead guilty. I cannot see how he could prove his innocence or establish that he did not commit the offence that I have just invented. This, however, is a serious matter, both substantively and from the perspective of how the Government conduct their legislative business. The cases are few, but the principle is important.
	There is another factor: last week, to her great credit, the Home Secretary established an inquiry into the use of undercover agents by the police. Who knows at this time what doubts might be cast on convictions procured by such means? What miscarriages of justice might now come to light? Now, I submit, is emphatically not the time to dilute the careful, moderate position established by the Supreme Court in the Adams case. On the contrary, it is time to affirm it and I hope the House will do so.

Lord Faulks: My Lords, this has been an excellent debate once more, in which the House has shown its considerable knowledge, learning and experience of the issues raised by this amendment. Let me start by saying that there is general agreement on one thing: the Government were right to seek to enshrine in legislation the appropriate test for eligibility for compensation following a miscarriage of justice. The common law was undoubtedly in a state of confusion, notwithstanding the distinction of the judges engaged in the exercise of trying to provide a workable test. The decision in the Adams case, a resounding 5:4 victory, was described in a way that I could not possibly presume to describe it by the noble and learned Lord, Lord Brown, as an unprincipled fudge. It was, of course, a culmination of effort—an absolutely high-quality effort—to try to arrive at a workable definition. However, the noble Lord, Lord Pannick, says that the Government’s test will lead to disaster—to acrimonious litigation and uncertainty.
	I have respectfully to disagree, because the Adams judgment has resulted in some 16 judicial review cases in the three years since the judgment. During the
	period from 2008 to 2011, when the case law laid down by the courts required, consistent with the Government’s position, that the applicant was clearly innocent, only two judicial reviews resulted from applications from those convicted in England and Wales. Therefore, there is likely to be acrimonious litigation. I am somewhat reluctant to be drawn on what the result would be in any particular cases, whether it is the Sally Clark case or other cases. The noble Lord, Lord Brennan, was, I think, referring to compensation under the ex gratia scheme, which was abolished by the Home Secretary in 2006. Here we are considering revisions of Section 133, which requires that the applicant has a conviction—whichever definition is adopted—and this will continue to be a requirement.
	The difference of opinion on definition is simply what a claimant has to establish. It is said that the Court of Appeal Criminal Division is not primarily concerned in these cases with proving innocence—quite so. It may well decide that a conviction is unsafe, but in doing so, the Court of Appeal will, and does, provide cogent and comprehensive reasons for that decision. It does not simply declare it. That provides the basis on which the Secretary of State or those working under his direction will be able to make an assessment entirely in accordance with the very straight- forward and clear test that we suggest is appropriate.
	The noble Lord, Lord Pannick, said that our law does not ask someone to prove their innocence. I agree entirely. Nor does this provision. It does not require an applicant to prove their innocence; it simply requires them to prove eligibility for compensation—money—when they are clearly innocent, to use the expression used in the common law or, as we describe it in statutory language, proof that they have not done it.
	We ask the House to bear in mind that we have a position of uncertainty and litigation, which requires clarification by Parliament, as is agreed. Parliament has provided as clear a definition as can reasonably be arrived at, and one which we say is consistent with justice, does not offend the presumption of innocence and resolves the difficulties that judges have had in arriving at a workable conclusion.
	The presumption of innocence is not in any way offended by the clause. I suggest to the House that it should agree that the House of Commons has considered carefully the high quality of the debate and the division of opinion among noble and learned Lords, and should respect and confirm the House of Commons decision.

Lord Pannick: My Lords, I am grateful to the Minister for the careful way in which he has addressed these matters and for the time and trouble that he has taken on this issue, not least in the helpful discussions that I have had with him over the past few months. My noble and learned friend Lord Brown of Eaton-under-Heywood spoke in favour of the Government's position. As he mentioned, he dissented in the Adams case. He did not approve of the test of the noble and learned Lord, Lord Phillips, in 2011 and he continues, as he is perfectly entitled to do, to dissent from the case made by the noble and learned Lord, Lord Phillips. The noble and learned Lord described the test of the noble and learned Lord, Lord Phillips, as a fudge. Some of us are quite partial to fudge, but I confine myself to
	reminding your Lordships of what was said in the Supreme Court in answer to the noble and learned Lord, Lord Brown, by the noble and learned Baroness, Lady Hale, in her judgment in the Adams case. She said:
	“I do sympathise with Lord Brown’s palpable sense of outrage … But Lord Phillips’ approach is the more consistent with the fundamental principles upon which our criminal law has been based for centuries. Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty”.
	A person does not have to prove their innocence in court, said the noble and learned Baroness, Lady Hale —I agree—and a person should not be required to prove their innocence when they apply for compensation after a miscarriage of justice has been established in the Court of Appeal.
	As the noble and learned Lord, Lord Hope of Craighead, said this afternoon, the Government’s approach will inevitably mean that people who are in fact innocent will fail to obtain compensation for a wrongful conviction established in the Court of Appeal simply because they cannot prove—it is often very difficult and sometimes impossible to prove—that they did not commit the crime. The Minister said in his observations in reply that the Government’s test does not require an applicant to prove their innocence. That is precisely what the Government’s amendment does; that is precisely what is so objectionable.
	I remain concerned not just about the principle; I remain very concerned about the practical consequences of the Government’s amendment. We are dealing here, as I said in opening, with the most sensitive, controversial cases in criminal law. The Court of Appeal will have allowed an appeal because the prosecution case has been fatally undermined. The defendant is released from prison. He or she may have been in prison for many years. Then, say the Government, the Secretary of State must pronounce on whether that applicant has proved that he or she did not in fact commit the crime.
	Nothing is more likely to prolong the misery of the miscarriage of justice not just for the applicant but for the family of the victims of the crime, whoever committed it. Nothing is more likely to provoke further litigation. It has never been the role of a Secretary of State in our system of law to determine whether a person is innocent of an offence. I do not think that it is desirable that we should now make it the role of the Secretary of State to determine whether someone is innocent of an offence. I wish to test the opinion of the House.

Division on Motion A1, as an amendment to Motion A
	Contents 214; Not-Contents 253.
	Motion A1, as an amendment to Motion A, disagreed.

Motion A agreed.

Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014
	 — 
	Motion to Approve

Moved by Viscount Younger of Leckie
	That the draft order laid before the House on 5 December 2013 be approved.
	Relevant documents: 17th Report from the Joint Committee on Statutory Instruments, 26th Report from the Secondary Legislation Scrutiny Committee, considered in Grand Committee on 24 February.

Viscount Younger of Leckie: My Lords, this order delivers better, more effective consumer advocacy and more joined-up supervision of the estate agency regime. It marks the final step in the Government’s three-year programme of consumer landscape improvements, and its merits were debated at some length in Committee on 24 February. I will now once more set out for your Lordships why these changes are sensible, necessary and in the very best interests of the consumer.
	Since 2011 we have streamlined and brought coherence to a landscape that was previously confusing and duplicative, and therefore inefficient. We have made it easier for consumers to understand where they need to go to get help and have given enforcers, advocates, and advice providers the tools that they need to do their new jobs. On 24 February the noble Lord, Lord Whitty, accused the Government of making these changes solely to save money or abolish quangos. This is simply not true. We are driven by a desire to improve the offer for the consumer. That is why we have created a landscape in which it is much clearer who is responsible for what, and in which there is much better co-ordination between consumer bodies and enforcers. This is markedly better than the previous arrangements because previously the consumer could have tried to phone lots of different organisations—their local council, a regional trading standards team, their nearby Citizens Advice bureau or the Office of Fair Trading—but now they need only ring one phone number, the single Citizens Advice Consumer Service helpline, to raise a concern, whether it is about their rights, a problem about a good purchased or a service performed or, if unsure, how best to take forward a complaint.
	We have established a more strategic approach to consumer enforcement, education and empowerment through the creation of the Consumer Protection Partnership. Resources are now focused where they
	are most needed and can have most impact because key partners within the landscape now collaborate to identify the most pressing risks to consumers and work together to eliminate this harm. We are already seeing the success from this approach. By working together to raise awareness of used-car scams during National Consumer Week last year, for example, members of the CPP reached significantly more consumers than if each had worked in isolation. So that is a good reason for change.
	We have also acted to close a potential enforcement gap by establishing the National Trading Standards Board and Trading Standards Scotland. We are ensuring that complex criminal activity can be more effectively tackled by trading standards because these bodies co-ordinate and prioritise national and cross-local-authority-boundary enforcement.
	I turn to the specifics of this order, which has three distinct purposes: to abolish the National Consumer Council and transfer its relevant functions to Citizens Advice, Citizens Advice Scotland and the General Consumer Council for Northern Ireland; to transfer the Office of Fair Trading’s estate agency functions to the Commissioners of Her Majesty’s Revenue and Customs and Powys Trading Standards; and to transfer residual OFT functions relating to its former consumer advice scheme to Citizens Advice and Citizens Advice Scotland. The scheme itself was transferred to the Citizens Advice Services on 1 April 2012.
	One or two noble Lords have already expressed sadness at the abolition of the National Consumer Council. As I said on 24 February, I personally recognise the great contribution that that body has made to consumer issues over many years and the fact that a number of your Lordships have played no small part in contributing to that, including the noble Lord, Lord Whitty, the noble Baroness, Lady Hayter, and my noble friend Lady Oppenheim-Barnes. However, no organisation is above change and improvement, and I firmly believe that the NCC’s strong track record will be enhanced when it joins the Citizens Advice service as a result of this order.
	Citizens Advice will be established as the publicly funded advocate for consumers, bringing together its existing wealth of knowledge of the problems faced by everyday consumers and Consumer Focus’s technical knowledge on the regulated gas, electricity and postal services industries. This change will create an even stronger voice for consumers, challenging public policy-making more effectively. This will mean better consumer outcomes because the issues that they are complaining about, such as confusing energy contracts, misleading prices and aggressive sales practices, will now directly influence consumer protection policy.
	The transfer of the Consumer Futures function is a testament to this Government’s confidence in the major role that Citizens Advice plays in our civil society. We firmly believe, contrary to some claims in the other place, that the leadership of Citizens Advice is best placed to deliver the Consumer Futures functions alongside its bureaux and helpline services. In 2012-13 the Citizens Advice consumer helpline dealt with almost 837,000 new cases, while 91% of consumers reported that they would use the service again and 60% said that they could not have resolved the problem
	without the help and advice that they received. So there is evidence that change both has been necessary and is working.
	Last week the noble Lord, Lord Whitty, expressed concern about funding for Citizens Advice, implying that it would have insufficient resources to deliver these new functions. I can confirm that Citizens Advice will of course continue to receive the same amount of ring-fenced funding, from an industry levy, to allow it to enhance the delivery of this important work.
	These changes will also create a stronger link between national enforcement of the Estate Agents Act 1979 and local intelligence from the trading standards community by appointing a lead enforcement authority to carry out the work on behalf of all trading standards authorities. This will be overseen by the NTSB, ensuring a strong connection between local enforcement trends and national cases.
	This lead authority model has been extremely effective in delivering other trading standards services. For example, fraud worth more than £145 million has been tackled by the Scambusters and the Illegal Money Lending Team in the past 18 months. The Illegal Money Lending Team is a trading standards unit based in Birmingham City Council, but it provides an England-wide service and has received plaudits for its successes. The funds for policing the UK estate agency market will be transferred from the OFT to Powys County Council via the NTSB’s enforcement grant, and ring-fenced to ensure that it is used for the purpose intended.
	When the order was debated in the other place, as well as in the previous debate in the Lords on 24 February, there was some concern about the process for appealing against warning and prohibition orders issued by Powys County Council. I confirm that the Government are not proposing any changes to the estate agents appeal process under the Estate Agents Act 1979 through this order. An appeal can be made to the First-tier Tribunal (Estate Agents), which forms part of the General Regulatory Chamber of the First-tier Tribunal. This is the same appeals process as applies to dozens of areas of civil law. I am pleased to report that Powys County Council has written to the noble Baroness, Lady Hayter, to clarify this point. I hope that consequently the noble Baroness is reassured on this issue.
	Questions have also been asked, both here and in the other place, about whether Powys County Council has the capability to undertake its new lead enforcement role. When the decision was made to transfer the OFT’s powers to a single trading standards authority, an open competition was run to select the local authority best placed to discharge the functions. All England and Wales local authorities were invited to bid for the work. Six bids were submitted, all of which were scrutinised by a panel that was chaired by the noble Lord, Lord Harris, and involved senior representatives from trading standards. This panel judged Powys to be the local authority best placed to provide the function and I have every confidence in the ability of its trading standards officers to carry out the work effectively.
	On 24 February the noble Baroness, Lady Hayter, also expressed concern about accountability for and monitoring of these functions within our new consumer
	landscape. Citizens Advice and Citizens Advice Scotland both have well established grant funding relationships with my department and are already fully accountable for the use of public and levy funding through conditions placed in their annual grant letter.
	Powys County Council will also be accountable to my department via the annual grant letter process. Powys will report to the NTSB as the co-ordinator of trading standards and the NTSB will be accountable to BIS, my department, for delivery of that work. Accountability for the functions under the money-laundering regulations is discharged through HMRC cost controls. I hope that noble Lords will agree that these arrangements are clear and robust.
	Another issue raised on 24 February by the noble Lord, Lord Harris, and the noble Baroness, Lady Hayter, concerned the approval processes for estate agent and letting agent redress schemes. As noble Lords will no doubt be aware, the Department for Communities and Local Government is responsible for introducing redress schemes for the letting and property management sector.
	The procedure for approving redress schemes in both the estate agent and letting agent sectors are outside the scope of this public bodies order, which deals only with the transfer of responsibility for approving the estate agents’ scheme from the OFT to Powys County Council. However, I can confirm that officials from BIS and the OFT have been in contact with their colleagues in DCLG to help them take account of the lessons learnt from regulating estate agents when designing the new letting and property management redress scheme. Although the two sectors may have many different characteristics, the process for mandating letting and property management agents will mirror that for estate agents.
	This order also creates efficiencies by transferring responsibility for oversight of estate agents’ compliance with the money-laundering regulations to HMRC. This capitalises on HMRC’s expertise in supervising other sectors for the purpose of money laundering and creates opportunities to exploit synergies to uncover other forms of non-compliance, which will give the taxpayer extra value for money. My understanding is that the Opposition welcome this change; indeed, at the debate on 24 February the noble Baroness, Lady Hayter, said herself at column GC 301, “this bit is brilliant”.
	Section 8(1) of the Public Bodies Act provides that Ministers may make an order only where they consider that it serves the purpose of improving the exercise of public functions. Such orders must have regard to efficiency, effectiveness, economy and securing appropriate accountability to Ministers. The changes I am proposing meet all these criteria. I remind your Lordships that the Secondary Legislation Scrutiny Committee supported our view that we have thoroughly met all the relevant requirements. Indeed, the Committee was satisfied enough to invoke the 40-day, rather than 60-day, scrutiny process.
	In conclusion, the changes made by this order complete the Government’s programme of improvement to the consumer landscape. In abolishing the National Consumer Council and transferring relevant functions
	to Citizens Advice, and transferring the OFT’s estate agency functions to HMRC and Powys County Council, this order puts the finishing touches to a landscape that will work more efficiently and effectively for the public.
	I commend the order to the House.
	Amendment to the Motion
	 Moved by Baroness Hayter of Kentish Town
	As an amendment to the above Motion, at end insert “but this House regrets that the draft Order fails to produce a coherent framework or single voice to protect consumers; fails to harmonise redress for estate and letting agents; and fails to produce adequate parliamentary or ministerial accountability for the new framework”.

Baroness Hayter of Kentish Town: My Lords, contrary to what has been said, the decision to abolish the NCC was taken to implement the coalition’s promise in the coalition agreement to,
	“reduce the number and cost of quangos”.
	It was not taken in the interest of consumers, nor after any criticism of the NCC. Indeed, the NCC’s work has been widely recognised in the UK and beyond.
	The Government said that they wanted to “simplify” the architecture of consumer representation; but they set about dismantling the NCC, and merging the OFT with the Competition Commission, before looking at the full range of responsibilities of each of those bodies. In fact, there was precious little overlap between the work of Citizens Advice and the NCC, while some of the OFT’s work—particularly on codes, anti-money laundering and redress—really does not sit happily with the Competition Commission.
	The Government have now discovered this. They have replaced the NCC and the OFT with the CMA, CA, CAS, CCNI, SCOTSS, TSI, NTSB, PCC, CPP and HMRC. To help Hansard and others, that alphabetical soup stands for: Competition and Markets Authority; Citizens Advice; Citizens Advice Scotland; Consumer Council for Northern Ireland; Trading Standards in Scotland; Trading Standards Institute; National Trading Standards Board; Powys County Council; Consumer Protection Partnership; and HM Revenue and Customs. For some code approval there may also be the PSA—the Professional Standards Authority. That is hardly a clear and coherent system, either for business or for consumers. Our own Secondary Legislation Scrutiny Committee actually called for greater clarity for consumers about this new landscape. This mish-mash is not clarity.
	Furthermore, none of those bodies has any direct representation from consumers. None of them has a consumer panel, nor any requirement to include someone with a background in consumer representation, despite our endeavours to ensure that for the CMA during the passage of the Bill. My concern might be driven by the need for any organisation funded to protect consumers to have some accountability to consumers; but I know that this House, quite rightly, has a broader concern about accountability to Parliament and to Ministers.
	Indeed, the test of the Public Bodies Act 2011 is that measures should lead to a more efficient, effective and appropriate level of accountability to Ministers. This order fails that test.
	I will take the example of estate agents, which has been mentioned already. For some years they have had to belong to a redress scheme. The OFT approved such redress schemes and could ban estate agents who broke the rules. This responsibility for redress schemes—and through them for 25,000 estate agents across England and Wales—will move to Powys County Council, which is an authority responsible to its Welsh electorate. However, for estate agents in England and Wales the elected authority of Powys will be accountable to BIS; it will report to the National Trading Standards Board in its role as co-ordinator; and it will be responsible to the Trading Standards Institute for the administration of its grant. Our Secondary Legislation Scrutiny Committee raised serious concerns about how Powys could reconcile its accountability to several different bodies. The Government have yet to answer those concerns.
	Furthermore, as the House may recall and as the Minister mentioned, the ERR Act now also requires letting agents to belong to a redress scheme. Obviously, the two existing OFT-approved estate agent redress schemes will apply to be approved for letting agents. Will it be the same body—namely, Powys—that will approve redress schemes for letting agents? No—that would be far too simple. The Department for Communities and Local Government is keeping that to itself and it will be handled quite differently, even if lessons are learnt.
	Not only that, but there is a risk that Scotland, Wales and individual local authorities in England will all have different approval schemes for redress schemes for the rental sector, with a consequent lack of consistency for landlords and tenants. Landlords and agents with property in more than one area could have varying rules to apply in different parts of the country. That does not just sound like madness; it is madness. At the moment we have just two redress schemes handling estate agent complaints. It would have been so sensible for them to handle letting agent complaints, given that virtually every estate agent is also a letting agent.
	Instead of that, the two existing schemes will have to seek authorisations from two or more different bodies, no doubt on slightly different criteria and over slightly different timescales, and report back annually to any number of different authorising bodies. Is this getting rid of red tape for redress schemes? Will it help consumers if there are different arrangements for handling complaints about buying as opposed to renting property, or if they are dependent on where people happen to live? The answers are, I think, obvious. Why on earth can these two almost identical redress mechanisms not be harmonised?
	The choice of a single local authority—Powys—to undertake this national task raises some serious questions. The original bid to the NTSB was from Powys and Anglesey. The latter was, among other things, to have heard appeals from estate agents dissatisfied with a Powys ruling. We have been told, and I have been
	reassured, that that is no longer the case as the First-tier Tribunal will now hear appeals. Today, I received a letter from the Minister in the other House saying that Anglesey will not have any role, and I hear from Powys—which, I think, has still failed to set a budget—that it is still looking at how to set up the system, although I gather that it now has one officer seconded to the OFT to find out how on earth to do it.
	However, despite the assurance about Anglesey, today I got a letter from Jenny Willott, the Minister in the other House, saying that Anglesey is no longer to have any part in this procedure, despite having been on the original bid. Later this afternoon, I heard that an officer from Anglesey was in London today, finalising its role in the oversight of the redress schemes. Perhaps the Minister will clarify this for us. We need clarification before we agree this order. Is it now simply Powys that is due to oversee this or is it Powys and Anglesey, to which the committee chaired by my noble friend awarded the contract?
	I note that the Minister said that he had confidence in this set-up. It is so important to house buyers that the complaints system should work. If he has that confidence, perhaps he will explain what exactly the role is and whether anyone is clear that Powys knows what it is doing. When my honourable friend in the other House asked whether we could see all the documents on the bid in time for this evening’s debate, the Minister’s colleague in the other House said that it was an FoI request and the documents would not be available until next month—so we have not been able to have the full bid papers and documents pertinent to the consideration of this order for today’s debate. Surely we should know the exact arrangements before we agree the order.
	I turn to the transfer to Citizens Advice of the NCC’s policy work and statutory information-gathering powers. I should first say that, the merger having happened, we clearly wish Citizens Advice and Citizens Advice Scotland well with their remit. Citizens Advice Scotland has sent me an impressive list of its consumer education, advice and campaign work. We hope that the Government will fund both of them properly and we look forward to them working to enhance consumer protection. However, we remain concerned about European consumer policy, non-functioning markets, vulnerable consumers and future input into legislative work. Traditionally, the NCC was very active on longer-term policies, and I fear that without a single powerful consumer voice to shape public policy, the consumer interest may be weakened.
	Furthermore, there is the issue of the accountability to Ministers of an independent charity, rightly and properly overseen and directed by its charitable trustees, for the use of public money and statutory powers. For example, what would happen should Citizens Advice, driven by the inexhaustible demands of desperate clients, underuse its powers simply by force of circumstance? We argued unsuccessfully during the ERR Bill that the CMA should have reserve powers to ensure that sufficient attention was paid to this new element of the CA’s remit and to ensure that it linked sufficiently with all the other players, such as trading standards, Powys and TSI, but we did not get it, so it remains unclear what would happen should Citizens
	Advice fall down on this part of consumer protection. I do not suggest it will, but who would know? Who would check? Certainly not consumers, as they no longer have an independent voice.
	Vincent Cable’s letter of 17 January to the noble Lord, Lord Goodlad, said that the Consumer Affairs Minister will hold Citizens Advice to account for the effective delivery of these functions on behalf of consumers—but how will that happen? Will it be simply through the terms of the grant? How will the Minister hear consumer views, and what action could she take if Citizens Advice failed to prioritise, for example, users of government-provided services? How could Parliament exercise any oversight on this?
	There is also the issue of whether Citizens Advice will remain an independent charity, because the ONS has said that because it is spending public money, it is in fact now a public body. Has Citizens Advice become a quango? Therefore, have we gone through all this to get rid of a quango called the NCC and see Citizens Advice turned into a quango—so we have not reduced even by one the tally that the Government wanted to get rid of?
	Much consumer law is made in Europe, and we worry whether the new architecture will ensure the continuation of the European work undertaken so effectively by the NCC. There is no mention of the EU in the explanatory document, or in the Secondary Legislation Scrutiny Committee report. Who will influence and help shape the rules coming out of Brussels on behalf of UK consumers?
	The decision to wind up the NCC having been taken, we want the new system to work as well as it can for consumers. Our regret is that this order implements an overhasty, ill thought-out change caused simply by the Government wanting to reduce the number of quangos, and that it fails to produce a coherent framework or a single voice to protect consumers. It fails to harmonise redress for estate agents and letting agents, and it fails to produce adequate parliamentary or ministerial accountability for the new framework. I beg to move.

Baroness Oppenheim-Barnes: My Lords, I quite naturally have a great interest in this debate as not the mother or even the grandmother but probably the great-grandmother by now of the introduction of the very first National Consumer Council. My noble and learned friend Lord Howe was the Minister in charge and I think the first chairman was John Methven. The next chairman was the noble Lord, Lord Borrie. I had just come to office as a Minister of State and to establish my neutrality all my senior officials said, “You won’t want to reappoint him. He’s a supporter of the Labour Party”. I said, “I want to reappoint him because he’s the best for the job and has always been the best for the job”. Right up to the very end, he was the best for the job. That is just establishing that I am not making very much in the way of party political points. However, I would be much more sympathetic to what the noble Baroness has said today if not for the fact that during the Committee stage of the Enterprise and Regulatory Reform Bill I had a strong amendment to take out the provision that virtually ended the life of the Office of Fair Trading and another for the Monopolies
	Commission but I received no support whatever from the party opposite. If I had received support—meaningful support—I would have been quite willing to table amendments at Third Reading that would have had a great deal more importance and significance. After all the things that the noble Baroness has said, I regret very much that I did not get that support at that time.
	When one looks back over the years, when we started the Office of Fair Trading and when the Monopolies Commission existed and then the NCC—of which I subsequently became chairman—things were done in great detail for the benefit of consumers and to a very high standard by both those organisations, and no one is sure what exactly is replacing them. It looks extremely like just another government department, which is not exactly what we would have accepted as a replacement that would be as available and as important as those two bodies. They have had a very quick demise, considering the date of the Bill and what was then going to happen. I regret this very much indeed. However, I say on behalf of the Government and also on behalf of the Conservative Party that we have been the leaders in all matters of consumer protection. We did not have junior Ministers; we had Ministers of State, with their main responsibility being consumer affairs. We did not have secondary Ministers. For the whole 13 years that I was in your Lordships’ House in opposition, we did not have anything very important and the only Minister was a very junior Minister, who had other things in his portfolio—which I think included the little matter of Northern Ireland.
	I feel that the noble Baroness has to be fair in these matters and explain why I received no support. We might have had a different outcome or influenced the Government in what they were going to do next. Now we have a big, new Consumer Rights Bill going through the other place, which I know the noble Baroness supports, as do I. We might want to tweak it here and there—indeed, that is quite likely—but it establishes that this party and this Government are not anti-consumer. As a past chairman of the NCC, I understand her concerns and I sympathise. I want to give the Government a chance to take note of what we are saying and of what we said in Committee and at Third Reading, but there are still some areas that are not clear and not satisfactory. It is not just the voice or anything of that nature but how it is going to work, which is the most important thing about it.
	Therefore, I have a great deal of sympathy with this Motion of Regret. However, I still would like somebody on the Opposition Front Bench to give the right amount of praise to Conservative Governments over the years for what they have done for consumers and for the trails that they blazed, and to welcome the new consumer legislation, which is still in the other place but will be in your Lordships’ House, I believe, in the autumn. Those are my views. They are mixed, but the principle of the Motion is one with which I have to sympathise.

Lord Borrie: My Lords, my noble friend Lady Hayter of Kentish Town gave a brilliant exposé and critique of the Government’s approach on this vital
	matter of organisations and their relationship with each other in the order. I want to concentrate on two matters. One is the National Consumer Council, which is to be abolished by the order; I regard that as a matter of regret. The other is concerned with estate agents. What I want to say about the National Consumer Council is, if you like, old stuff. The Government have heard not just from this side of the House but also from the other side, from people such as the noble Baroness, Lady Oppenheim-Barnes, that, in its day, the National Consumer Council, led by such as herself and the noble Baroness, Lady Wilcox, did a distinguished job with dedicated staff, reasonably well resourced. It did a great deal of research on behalf of the consumer with no ties of any other kind that would have spoilt that.
	Being in charge of the Office of Fair Trading for many years, I remember that the pieces of research done by the National Consumer Council were extremely valuable to us. They were thorough and done from a consumer angle that enabled one to counter the other angles that the Government were always getting from the CBI, the Institute of Directors and so on. There needed to be a consumer voice, and the NCC gave it.
	Where we have got to at the moment is that we have an order to abolish the National Consumer Council. The Government have made what efforts they can to pass some of its responsibilities on to other bodies. Citizens Advice has long had devoted workers in the field of advice and education, not just on consumer matters but on all sorts of other personal matters of welfare, social security and so on. I do not denigrate the work of the citizens advice bureaux or say that things should not be transferred to them from other bodies. However, the National Consumer Council provided more than simply advice and education, and we are losing something. The Government have never really explained who is to do it now because the other bodies referred to—the co-ordinating bodies such as the National Trading Standards Board, well chaired by my noble friend Lord Harris of Haringey—have other responsibilities. They do not have time, in many cases, to do lengthy research to help government departments and the Office of Fair Trading. Indeed, the Office of Fair Trading is also to disappear in three weeks’ time—on 1 April, I believe, which seems a very suitable date. It is to merge with the Competition Commission to form the Competition and Markets Authority. We have talked about that in the past and I, for one, am reasonably satisfied that what has been achieved in bringing those two bodies together will give them a good start on 1 April to progress their work. However, I still do not understand, and I seriously regret, the abolition of the National Consumer Council.
	As far as estate agents are concerned, Members of the House will know that the Estate Agents Act 1979 was a very substantial Act dealing with dishonesty and other breaches of criminal law that required some attention; perhaps that attention should take the form of banning the estate agent from continuing to work as such. Prior to the banning order there would be warnings and so on. The Office of Fair Trading has done that throughout the existence of the Estate Agents Act.
	Once the Office of Fair Trading had disappeared, as was intended by the Government through the order now before us, who was to do the work of enforcement, banning estate agents when they had proved themselves to be dishonest and ought not to practice as such any longer? The answer is Powys trading standards department, or Powys Council. I have nothing against Powys; I do not even need to look at an atlas to know where it is. It is, none the less, a smallish area—which happens to be in Wales rather than in England. I have no doubt that my noble friend Lord Harris of Haringey, who may speak in this debate, will say that a competitive tendering process was brought about by the Government, which many county councils responded to, and Powys turned out to be the best. I did not know the various detailed points, which seem to be continuing to change even today, meaning that the order before us is not finally complete. Those matters mainly concern Anglesey —I also happen to know where that is, and I know that it does not border on Powys. However, there we are; there might be some mutual arrangement between Anglesey and another county council.
	Since there was a competitive tendering bid, I dare say that it has been clearly established, according to those who examined the matter, that Powys was better than any of the other applicants. That does not mean that it is better than the Office of Fair Trading has been over the past 20 years, or however long it is. Neither does it offer any help to the Minister in suggesting that it is a suitable recipient of the very considerable banning order powers that the Office of Fair Trading has had and used from time to time over all these years. However, the Government have not had much chance of doing anything else. No doubt they searched around to find a remedy, because there are no other national bodies they could latch on to, unless possibly they wanted to overwork the Competition and Markets Authority and give it something entirely different from competition. It is not very satisfactory. If Powys does a good job, which it may well, why does it then have to go through another process of competitive tender in three years’ time? Three years is hardly enough time to get established, let alone to be ready to fight one’s corner against competitors.
	The whole Bill was ill thought-out from the beginning, as my noble friend Lady Hayter indicated. It has sorted some things out as regards Citizens Advice and the work of trading standards officers in different departments coming together on a national basis to work across the boundaries. That has gone on, and it is good. However, the whole episode has led to the unsatisfactory order which is before us today. If we pass it, we do so with my regrets.

Lord Whitty: My Lords, I support the amendment to the Motion in the name of my noble friend Lady Hayter and her concerns about this order.
	We are obviously at the final stage of this process, and the Government have determined for some time to transfer many of these functions as set out in the order. I make it clear that I hope that the new arrangements will deliver for consumers. I declare a past interest as the first chair of Consumer Focus, which was the expanded National Consumer Council, over the past four years, and as a vice-president of the
	Trading Standards Institute. As this is the final stage of the dismantling of Consumer Focus, which was only established under the 2007 Act, it provides for the responsibility for those issues which still remain with Consumer Futures, the successor of Consumer Focus, namely the regulatory area of energy and post.
	I rehearsed at some length in Committee—I do not intend to repeat it entirely—why I felt that the coalition Government had missed a major opportunity of doing what the Minister claims this order does: namely, to create a comprehensive consumer advocacy organisation which is clear to consumers, to government and to business. When the new Government came in they rightly identified the complexity of the existing consumer landscape and the need to simplify it. I still believe that it was the intention of BIS Ministers—the noble Lord’s predecessors—to carry out that comprehensive reorganisation. However, that scheme was hijacked by the Cabinet Office, the desire for a cull of the quangos, and the consequent timetable of the passage of the Public Bodies Bill, and undermined by the squeeze on public expenditure.
	It is now three years since the Public Bodies Act was passed. I am afraid that in that time there has been some salami-slicing of the government support for consumer advocacy and of the money available. That has not just hit Consumer Focus but some of the other bodies as well. Passenger Focus, which deals with passenger transport, has had its budget significantly cut, the Consumer Panel within Ofcom that covers communications has virtually disappeared, and there has been some narrowing of the role of the Consumer Panel in what was the Financial Services Authority and is now the FCA. Therefore there is a bit of a pattern. However, at least as far as the future of Consumer Focus’s responsibilities is concerned, we know that very soon Citizens Advice and Citizens Advice Scotland will take on those final responsibilities. That it would have been better to have had a comprehensive organisation which they could take over before transfer into the third sector is, in a sense, water under the bridge. However, we therefore still have a partial coverage and not the fully comprehensive system which the Minister was claiming we have.
	As regards Citizens Advice, I do not think there are any noble Lords who do not have huge respect for its work. In one sense, to broaden its policy and advocacy function will turn it into an even more effective body. However, there have to be some anxieties about both its capacity and its resources. Contrary to what the Minister has said, the resources transferred from the previous Consumer Focus structure are significantly less than that which existed within Consumer Focus. Fewer than half the staff posts will be transferred. Although the level of funding for the energy and post side will more or less be kept up, the area to which my noble friend Lady Hayter referred, which is effectively the traditional area of the NCC—consumer interest within the non-regulated markets, the whole area of private services, goods, shopping, financial services, digital affairs and so forth—has been squeezed the most.
	In its relatively short life, Consumer Focus produced 300 reports, 500 responses to government consultations, and 200 pieces of research work. That requires significant
	resources and concentration of effort. In the area of non-post and non-energy responsibilities, that will be severely cut. To take one example, reports of Consumer Focus—or the NCC as for simplicity we had better call it—on cash ISAs and on travel money indirectly recovered £300 million for consumers.
	The Minister has claimed in Committee, in a letter to me and again this evening that the resources will be the same: that the money from Consumer Focus for non-energy non-post work has transferred to Citizens Advice and Citizens Advice Scotland. Not so. Three years ago, that figure was £5 million a year. The £2.7 million to which the Minister has referred is therefore a cut of nearly half over the level of activity for traditional NCC work. We have therefore lost a significant part of the capacity to assess consumer detriment across all these fields, including the general field of consumer law and in particular, the area of European law in which Consumer Focus and the NCC were so prominent.
	There are some parts of this order that I welcome. One of them is the transfer of powers which Consumer Focus had under the Consumers, Estate Agents and Redress Act 2007 to Citizens Advice. The Government were initially somewhat hesitant about that. It is important that Citizens Advice inherit those powers to require information from any provider of goods and services. As my noble friend has said, one of the consequences of this appears to be that the ONS has reclassified Citizens Advice as a quasi-quango, part of the public sector—so much for getting rid of quangos. Whatever we call it, I hope that does not mean that the independence of Citizens Advice as a charity and its ability to campaign for citizens and for consumer rights—if necessary against government policy—is thereby constrained. I hope that Citizens Advice can take on this wider role, and that in a few years’ time we shall see that organisation develop at least as strong a role in general consumer rights and advocacy as predecessor organisations. Regrettably it is somewhat hobbled in the way in which we are beginning this, but I wish it well.
	Briefly, I have two other points. One transfer is that of the responsibilities for post to the Consumer Council for Northern Ireland. That should have been done five years ago. I am glad that the Government have eventually done it because it clarifies the position in Northern Ireland.
	The Consumer Council for Northern Ireland is a comprehensive body. It covers all the regulated sectors: transport and water as well as energy and now post. It is also a complaints body and a consumer education body. It is exactly the kind of model that Ministers were after in the first place and that I should have liked to see here in Great Britain. It is therefore regrettable that some of the enthusiasm for culling public bodies has begun to infect Northern Ireland colleagues and that they are now looking at the Consumer Council for Northern Ireland with a view to curtailing, transferring or dismantling all or some of its functions. I hope that the Minister’s opposite numbers in Northern Ireland do not go down that road, because it is a very important body.
	Finally, on trading standards, concerns have already been expressed by my noble friends Lord Borrie and Lady Hayter. There is an argument for devolving what were the functions of the OFT to local authorities and having a lead for local authorities in these areas, but that is very difficult to attain when there is such a squeeze on trading standards resources across the country. My noble friend Lord Harris reported to Committee—I hope he is going to repeat it in a moment—that there is effectively a 40% cut on the funding of trading standards in England over this period. Against that, it is difficult to see how trading standards organisations at local authority level are going to step up to carrying out the kind of job that the OFT has done in the past. I hope that we are wrong, but it is a bit of a diversion from some of the traditional role of local authorities. We are stepping into the unknown, whereas it was clear how important the OFT role in this field was.
	To take one example in relation to Powys, budget discussions are continuing with Powys, but I understand that in parallel with taking on this enforcement responsibility, the likelihood is that Powys will cut its grant to Citizens Advice by at least half and possibly completely. That indicates the degree of squeeze there is on consumer activity at local authority level. At present all fronts are suffering cuts.
	The Government are doing many positive things, and I join the noble Baroness, Lady Oppenheim-Barnes, not only in her defence of the history of the NCC but also in welcoming, at least in general terms, the consumer Bill that has been introduced in another place. I hope that we are moving into a more positive era. However, it is difficult to do this when capacity and resources are being squeezed on both the consumer advocacy and the enforcement front.

Lord Berkeley of Knighton: My Lords, I shall help the noble Lord, Lord Borrie, on one small point. Being Lord Berkeley of Knighton, I reside in Powys and have had considerable dealings with Powys County Council and indeed the trading officer. I was slightly pricked by the noble Lord’s comments, and should like to inform him that Powys is quite a long way from Anglesey. Having said that, I feel that I am not expert enough to comment on the central issue, but in my experience Powys is an exemplary council. In my dealings with it and with its trading standards office I have experienced great efficiency and courtesy.

Lord Harris of Haringey: My Lords, I declare an interest as chair of the National Trading Standards Board, which a number of noble Lords have mentioned. I am pleased to take part in a debate where so many distinguished Members of your Lordships’ House who have played a significant and major role in the development of consumer affairs and consumer protection in this country have participated: the noble Baroness, Lady Oppenheim-Barnes, and my noble friends Lord Borrie and Lord Whitty. I am not going to travel down the historical road on which the noble Baroness, Lady Oppenheim-Barnes, took us. I recall when I was a very junior staff member of an organisation—abolished I think by a Conservative Government—called the
	Electricity Consumers Council, her rather grand appearance before us when she was Minister for Consumer Affairs. I also remind her that it was, I think, a previous Labour Government who had consumer protection as a Cabinet role fulfilled by my noble friend Lord Hattersley, who is not in his place today. That was some years ago—

Baroness Oppenheim-Barnes: It was not quite the same thing.

Lord Harris of Haringey: I accept that it was not quite the same thing.
	The Minister in his introduction told us that the Government’s aim was to improve the offer to consumers. When we talk about the transfer of estate agent functions, essentially we are not talking about a change in the offer. What is happening is a transfer of what I am assured—I am not sure that the Minister actually said this in Committee—is the same sum of money that was expended by the Office of Fair Trading on the estate agent regulation functions, through the National Trading Standards Board, for the function which has now been awarded to Powys. It is, therefore, the same money, not new money. It is not an improvement in the offer. I shall come back to why that is important in a moment.
	The £178,000 or thereabouts spent by the Office of Fair Trading has now passed to the National Trading Standards Board. As a board, we went through a commissioning exercise. As has been reported, six bids were received from local authorities around the country and Powys was selected by the selection panel to be the successful bidder. For the avoidance of any doubt, given some of the comments made in the other place, I should make it clear that none of those involved in the selection process was associated with the bids considered.
	My noble friend Lady Hayter implied slightly pejoratively—I think that she was slightly overegging the case for the purposes of debate—that one officer from Powys had been seconded into the Office of Fair Trading to learn how to do it. I had the benefit earlier today of meeting a number of the officers from Powys who are responsible for this function. As I understand it, two officers from Powys are working in the Office of Fair Trading at present, for a very specific reason. Because of the problems that the government business managers have in processing business through your Lordships’ House and elsewhere, this order has not yet been made. As a consequence, it is not possible for preparatory work to be done in respect of how this function is to be carried out because the information cannot legally be transferred from the Office of Fair Trading to Powys County Council. So until your Lordships pass this order, the files cannot be moved and it is necessary for the officers from Powys to work through the Office of Fair Trading and carry out that function.
	It is worth emphasising that this is a national function that will be delivered by a single local authority. That is not a unique model. There are a number of functions financed through the National Trading Standards Board where that is the model. The Minister referred to the illegal money lending teams for England and Wales, which are administered by a single local authority. The Illegal Money Lending Team for England is a
	very large organisation with a large number of staff, delivering services around the country, not only to consumers but in terms of outreach, and using the money seized under the Proceeds of Crime Act to improve consumer education. I was involved at a launch in a school in north-west London only a few days ago where a teaching pack for schools was being launched to ensure that pupils acquire the necessary skills to manage their own money and to understand the dangers of them and their families falling into the hands of loan sharks. That is a national function being delivered by a single local authority—in that case, the City of Birmingham.
	There are similar examples in the work that is done on e-crime, on behalf of trading standards, which is delivered by North Yorkshire County Council, and the work being done on the national intelligence hub, which is delivered by Suffolk County Council. You can go through a list of functions that are delivered by agreement, by a memorandum of understanding, by individual local authorities in this way. So the Powys example is by no means unique. It is worth recording that and to recognise that this is about establishing and maintaining a single national state agency enforcement unit, providing an appropriate adjudication system, including a process to manage appeals; to provide and maintain a web-based public register; and to approve and monitor the approved estate agent redress schemes to which my noble friend Lady Hayter referred.
	The fundamental issue that should be considered in the context of this order is the Minister’s initial opening statement about improving the offer to consumers. What is being enforced here is the Estate Agents Act 1979, which was no doubt right for its time—but a lot has happened since then. Increasingly, properties are bought and sold and the interactions take place through the web. There are still an awful lot of estate agents with a physical presence in high streets, but the nature of estate agency is changing, and the time may well have come for us to look at the legal basis on which this regulatory function takes place. We also have the increasing practice of estate agents who act both for the person who is selling their property and for the person who is buying the property, somehow managing to acquire fees from both of them in the process—which probably coincides with just about everyone’s caricature view of how estate agents behave. The question of how this regulation should go forward in future also requires a look at the legislative framework, and I would be grateful if the Minister could tell us whether, perhaps in the passage of the Consumer Rights Bill that is going through Parliament at the moment, we might want to look soon at whether the Estate Agents Act 1979 is fit for purpose.
	That brings me to the point that my noble friend Lady Hayter raised about letting agents. I understand that there is a distinction, but in a large number of instances a letting agent and an estate agent is the same entity. It is not simpler to have one regulatory mechanism dealt with through the process that we are discussing today and another dealt with through the DCLG process; despite the no doubt wonderful interaction that is taking place between the officials of the two
	departments involved, that is not sensible. It certainly causes confusion. At a time when I know that the Government are committed to reducing the burdens on business, does it really make sense to have what may be one very small local agency deal separately with two regulatory systems maintained by two different departments? I suspect that it does not.
	Interestingly, earlier today I met a representative from the Independent Network of Estate Agents. I do not know how many agencies that he relates to, but it was quite apparent that he was totally confused about how the estate agent regulatory system interacted—in fact, it does not—with the process for regulating letting agents. He had lots of questions about the new process for managing letting agents, which colleagues who are responsible for delivering regulation of estate agents could not answer. But that is a demonstration that this is going to cause confusion and problems on the ground.
	The other interesting message that came across from a number of the organisations or stakeholders who had come along to hear how the new system worked was their amazement that the whole exercise was going to be valued at only £178,000. These are people who are to be regulated by these processes, who said that they thought that it should cost rather more because they thought that there was rather more to do.
	The Minister has talked about improving the offer to consumers, but this measure is not doing that—this is transferring the offer to consumers and administering it in a different way. There is clearly work to be done both on the legislative framework about the interaction with letting agents and in terms of the resources that can be made available for this function, if we are genuinely to improve the offer to consumers.

Viscount Younger of Leckie: My Lords, this has been an interesting debate, and I thank all noble Lords for their contributions. Just before I go into the detail of the debate, I want to cover a couple of points. First, the noble Lord, Lord Harris, asked recently about the review of the Estate Agents Act. At present, we have no plans to review the Act. However, my colleague in the other place, Jenny Willott, has written to ask the ombudsman to review the issue of double-charging, which I agree is a worrying trend.
	Secondly, I thank my noble friend Lady Oppenheim-Barnes for her general support for what we are doing in the Consumer Rights Bill. I very much welcome her support for the Government’s measures to modernise consumer law, which will make a major difference on behalf of consumers and has been widely supported.
	I now return to this particular order. The Government believe that the changes introduced by the order will deliver more effective consumer advocacy and more joined-up supervision of the estate agency regime. Noble Lords have raised a number of points and I will seek to address these in a few moments.
	The noble Baroness, Lady Hayter, stated that the measures that we are proposing lack coherence and fail to provide a single voice to protect consumers. I challenge that assertion. The consumer journey will not change significantly under the new arrangements.
	We are simply joining up the policy-making and regulatory oversight expertise of Consumer Futures with the existing consumer complaint handling abilities of Citizens Advice services. The changes do not mean additional burdens for local bureaux, as information on cases that they deal with is already collated centrally to inform Citizens Advice campaigns and reports. As a result of these changes, anyone needing impartial help or advice on a consumer issue will be able to phone the national helpline, contact their local bureau or use the interactive help on the Citizens Advice web pages.
	The noble Baroness, Lady Hayter, and the noble Lord, Lord Whitty, suggested that we are simply abolishing quangos. Again, I challenge that assertion, as I did at the beginning of the debate. This is not simply about making a reduction in public bodies. Bringing together the in-depth knowledge of the regulated energy and postal service sectors with the wealth of intelligence on consumer problems available to Citizens Advice will bring coherence to public policy-making. For the first time, the consumer advocate will have detailed knowledge and understanding of the challenges facing real consumers across the country when campaigning to influence new regulation and policy development.
	During the debate in Committee last week, the noble Lord, Lord Whitty, bemoaned the fact that a number of consumer bodies remained outside the scope of these changes. I reiterate that this is not about rearranging the deck-chairs for the sake of it. This is about achieving real benefits for society, by enabling consumer advocates to effectively influence energy policy, transport policy, telecommunications policy, financial policy and general consumer matters. Citizens Advice will collaborate with consumer representatives in the other regulated sectors to ensure that best practice is shared and that regulatory developments in the other sectors reflect insights from the experiences of people on the street. Trading standards officers already take enforcement action against local estate agents. Changes brought about by this order support the flow of information from local to national enforcement, bringing further coherence to enforcement in this sector.
	The noble Baroness, Lady Hayter, implied criticism of the Government for failing to harmonise redress for estate agents with redress for letting agents through this order. I will say more about this in a moment, but such harmonisation was not an objective of this order and the estate agent and letting agent sectors have very different characteristics.
	When the Enterprise and Regulatory Reform Act was debated in Parliament, the noble Baroness proposed an amendment that called for letting agents to be regulated in the same way as estate agents, much as she described in her speech today. This amendment was rejected by the Government on the grounds that overregulation reduces supply, which in turn reduces choices for tenants and could lead to rent increases. However, the Government recognised the value of introducing a mandatory redress scheme, and this part of the noble Baroness’s amendment is now part of the Act.
	The Government have taken a consistent approach. The process to establish and approve the new redress schemes for letting agents will mirror that for the
	existing estate agency schemes. This follows discussions between BIS and OFT officials, with colleagues in the DCLG, to help them take account of the lessons learnt from regulating the estate agency market; such points have been made by noble Lords in today’s debate. The Secretary of State for Communities and Local Government will be responsible for approval and oversight of redress schemes for letting agents, reflecting his department’s responsibility for this sector. Oversight of the estate agency schemes, and approval for any future schemes, will reside with Powys, reflecting the extensive role of trading standards in the broader regulation of this sector.
	Before I address some of the questions raised, particularly those of the noble Baroness, Lady Hayter, I will say that it is very good to have an endorsement of Powys by the noble Lord, Lord Berkeley. It was also particularly helpful to have an explanation of the changes and of the selection of Powys by the noble Lord, Lord Harris.
	The noble Baroness, Lady Hayter, raised the issue of the line of accountability for Powys County Council and stated that it was convoluted and unclear. This is simply not true. Ultimately, Powys County Council will be accountable to BIS. Powys will report to the NTSB in its role as co-ordinator, and the NTSB will be accountable to BIS for the performance of its enforcement teams and projects, including estate agency work. For the avoidance of doubt, Powys-elected representatives will have no part in running the new estate agency functions—a point raised notably outside this House.
	The noble Baroness raised the issue of the role of Anglesey and stated that the Government have still not made clear what the role of Anglesey is. Both the Consumer Affairs Minister, the Member for Cardiff Central, and I have made it clear that it is Powys County Council that will take on sole responsibility for delivering these estate agent functions. It is true that the original bid submitted by Powys County Council proposed that some of the work be carried out in partnership with Anglesey. However, during the development of the transition bid, as circumstances changed, a decision was taken to deliver all the necessary functions from within Powys County Council.
	To avoid any potential conflicts of interest between its statutory responsibilities as the lead enforcement authority and local enforcement cases, Powys County Council has decided to second an official from Anglesey County Council to manage matters that relate to estate agents which operate within Powys County Council’s area. This officer will also investigate national cases under the Estate Agents Act, but will act under the authority of Powys County Council. The OFT currently operates a similar Chinese wall between its enforcement and investigative activities. If it is some reassurance to the noble Baroness, we will show the paperwork associated with Powys’s bid in due course, as promised by my colleague in the other place, Jenny Willott, in her letter to Stella Creasy today.
	The noble Baroness also raised the issue of the delay in providing a response to the request from Stella Creasy on the FOI request for the paperwork on the Powys bid. I will clarify that her letter was received on Thursday night, requesting a significant amount of
	additional information. We issued a response to all the issues that she raised earlier today. We will provide the paperwork requested in accordance with the Freedom of Information Act 2000.
	The noble Lord, Lord Borrie, asked why the estate agent powers passed to Powys. Currently, both trading standards and the OFT possess enforcement powers under the Estate Agents Act 1979. Transferring the OFT’s powers to trading standards will simplify the landscape by giving sole responsibility to trading standards. This is very much in line with the Government’s intention that trading standards be responsible for the co-ordination of national consumer enforcement. Under the oversight of the National Trading Standards Board, a lead local authority will utilise the network of national, regional and local intelligence provided by trading standards services to carry out this function. As I have said, there is a previous precedent for a local authority to discharge functions on behalf of a nation, as alluded to by the noble Lord, Lord Harris. For example, the illegal money lending teams for England, Scotland and Wales of the NTSB and Trading Standards Scotland are hosted by single local authorities.
	The National Trading Standards Board ran a tender exercise in the summer of 2013, as the noble Lord, Lord Harris, has said, to appoint a lead enforcement authority to host the National Trading Standards Estate Agency Team. Each bidder was required to demonstrate how it would satisfy a number of criteria. As has been said, six applications were received in total, and these were reviewed by a panel of senior trading standards officers, supported by officials from BIS, the NTSB and the OFT. Each bidder was required to demonstrate how they would discharge the functions under the 1979 Act, and through careful analysis of bids, the panel was able to assess that Powys County Council was the authority best placed to provide the most efficient and effective management of the function. I hope that this extra information, on top of what I said earlier, gives some further reassurance to this House.
	The noble Baroness, Lady Hayter, asked very clearly why Powys was not appraising letting schemes. I will reiterate that the lettings and property management work redress scheme under the Enterprise and Regulatory Reform Act 2013 is new, and only concerned with mandatory redress, as the DCLG has responsibility for letting and property management agents within government. It was decided that it would be best placed to manage the relatively straightforward redress scheme appraisal process. There is a distinct difference there.
	The noble Baroness, Lady Hayter, raised the issue of some of the OFT’s functions, which she stated did not sit well with the Competition Commission responsibilities in the CMA. We agree that some of the functions of the OFT sit better with other organisations. That is precisely why we are moving responsibility for the redress scheme to trading standards so that the CMA can focus more on market-wide issues to benefit consumers and bring a closer link between front-line trading standards expertise and the estate agency redress scheme.
	The noble Baroness also asked why Powys was responsible for regulating all estate agents. These functions are just two of a number of measures that the Government have in place to protect consumers from rogue estate agents. A wide range of formal actions can be taken against rogue estate agents under both sector-specific and general law. The noble Lord, Lord Harris, alluded to this.
	The noble Baroness also asked whether statutory bodies should have consumer panels or consumer representatives. We completely agree that the organisations in the consumer landscape should take full account of the perspectives of consumers. We believe that this is best achieved, however, through open consultations and engagement, such as the CMA’s recent consultation on its business plan and the consultation by Consumer Futures on its work plan, rather than specifying the need for one person who represents consumers. The whole organisation should think about the needs of the consumer.
	The noble Baroness had concerns about vulnerable consumers, and I agree that she raised a fair point. The Citizens Advice service also has substantial experience of addressing the needs of vulnerable people across a wide range of subject areas in which I am sure the noble Baroness will be well versed. We are confident that it will be able to deliver outcomes with no loss in quality. While Consumer Futures currently assists around 7,000 customers directly, the Citizens Advice service is advising and supporting millions of individuals.
	The noble Baroness asked about measurements—in other words: how will we know that these arrangements are working? The bodies have well established grant funding relationships with BIS and are already fully accountable for the use of BIS funding and levy funding through conditions placed in their annual grant letters. Grant terms will be expanded to set out the requirements and key performance indicators relating to these new activities. Performance will continue to be closely monitored by BIS to ensure that the successor bodies are delivering good outcomes for consumers and achieving good value for money for levy funders and taxpayers. I should reiterate that these arrangements mirror those for the NCC.
	The noble Baroness asked a question along the lines of: is Citizens Advice now a public body? We are confident that Citizens Advice remains a charity, and although we have recently been discussing its classification with the Office for National Statistics, the Government remain confident in their belief that Citizens Advice should remain outside the public bodies framework. I hope that that is some reassurance.
	The noble Baroness also asked why the letting and management redress scheme rests in England only. She may be aware that housing is a devolved issue. It is up to the devolved Administrations to introduce the protections that are important to them and reflect their differing priorities and different housing markets. She also asked why the letting and management redress schemes simply use the estate agent scheme. It is important that the approval and redress schemes for letting agents involve a fair and transparent process. I should reiterate that simply extending
	the estate agent schemes to include letting agents would unfairly restrict any new provider from coming forward.
	The noble Baroness asked whether Citizens Advice would play a role in Europe. Indeed, it will play a full role in Europe, working with other EU bodies to promote consumer welfare and combining the NCC’s experience with Citizens Advice’s knowledge of consumers on the ground. The CMA will continue to lead the UK regulators’ engagement by working with the NTSB to feed in the experiences of trading standards and its enhanced role in the new landscape.
	The noble Lord, Lord Borrie, basically stated that the Government have not explained who will do the work of Consumer Futures. The majority of staff from Consumer Focus and the NCC will transfer into Citizens Advice. This includes the director, who will fulfil his role in Citizens Advice as well as most of the expert staff. We recognise the importance of ensuring that there is sufficient capability and capacity for this important work, and firmly believe that our plans will achieve this.
	The noble Lord, Lord Whitty, raised the issue of local trading standards being inadequately resourced to take on new functions. The baseline cost of policing the UK estate agency market will transfer from the OFT into the NTSB’s enforcement grant. This amount will be ring-fenced from the main portion of the grant in order to ensure that the full funding will be used for the purpose intended.
	The noble Lord also raised the issues of the lack of staff transferring to Citizens Advice and the trimming of resources. I hope that I can give him some reassurance that the vast majority of policy staff will transfer to Citizens Advice. Next year’s levy-funded budget will be the same as this year’s. The noble Lord stated that funding for general advocacy has been cut. Budgets have been squeezed since 2008 in the light of pressure on the public finances, but we are confident that efficiencies created by this transfer will enable Citizens Advice to step into this role.

Baroness Oppenheim-Barnes: My noble friend will remember that in Committee during consideration of the then Enterprise and Regulatory Reform Bill I cited the amount of money that I made available to Citizens Advice in 1979-80 because of a small increase in its duties. It was £3 million then, which, in terms of what is being given now, causes me great concern. All members of citizens advice bureaux are not necessarily well versed in consumer affairs—they have other qualifications. If situations arise in which they do not know what to advise, who are they going to ask to tell them?

Viscount Younger of Leckie: I should like to write to my noble friend to clarify that question and give her more detail about the transfer. I hope that I will be able to give her some figures and will copy in other noble Lords to provide further details. I hope that that gives my noble friend some reassurance.
	The noble Baroness, Lady Hayter, suggested that the provisions in the order do not provide—

Lord Whitty: Before we leave the issue of the transfer of money and personnel, is the noble Viscount saying that he rejects my view that less than half the number
	of posts in Consumer Focus three years ago will actually reappear in Citizens Advice, and that the non-post, non-energy side has been cut significantly—almost by half—in that period? That is a considerably larger reduction than the general cut in public expenditure to which he referred.

Viscount Younger of Leckie: I will be writing to my noble friend Lady Oppenheim-Barnes to clarify the position on the transfer, and the letter will be sent to the noble Lord. That should directly address the issue of how many staff are likely to be transferring.

Lord Whitty: I accept what the noble Viscount said regarding transfer, but I was referring to the point about the transition over the past three years when compared with what the NCC was previously doing.

Viscount Younger of Leckie: I will write to the noble Lord. The noble Baroness, Lady Hayter, suggests that the provisions in the order do not provide adequate parliamentary or ministerial accountability. However, I dispute that, as the noble Baroness will know. In making an order under the Public Bodies Act, a Minister must have regard to a number of tests, including the requirement to secure appropriate accountability to Ministers. The Secondary Legislation Scrutiny Committee considers compliance with all these tests. I remind the noble Baroness that in the case of this order the committee concluded that it was content to apply the 40-day affirmative procedure rather than the more stringent 60-day process. However, I will again set out the measures that we have put in place to ensure clear lines of accountability, and I will do that in a separate letter on grounds of time.
	I conclude by addressing the comments made by the noble Baroness, Lady Hayter, and the noble Lord, Lord Whitty, at the beginning concerning quango-cutting. On the one hand, we are being accused of having too many bodies; on the other hand, we are accused of being forced by the Cabinet Office to cull quangos. We think that our redesign of the consumer landscape strikes the right balance, including representation across all parts of the UK. The changes brought about by this order will deliver more effective consumer advocacy and more joined-up supervision of the estate agency regime.

Baroness Hayter of Kentish Town: First, I thank the Minister for doing as good a job as he could with the material at hand. I think that we know that he is batting on a sticky wicket but he did his best. I also thank the noble Baroness, Lady Oppenheim-Barnes, the noble Lord, Lord Berkeley, and my noble friends Lord Borrie, Lord Whitty and Lord Harris for their contributions to my regret Motion. I particularly thank the noble Baroness, Lady Oppenheim-Barnes. She called herself the “great-grandmother”. I think I would have to say “godmother”, because it sprinkles a bit of gold dust whence it goes. Consumers have an awful lot to thank her for.
	I also express thanks to my noble friend Lord Stevenson, who, as we have been going along, has managed to find for me the debates that the noble Baroness referred to concerning her attempts to halt
	the merger. I am afraid that my memory is perhaps not as acute as it should be but we have looked quite carefully at them and it looks as though we were trying—maybe we took the wrong call—to improve what was being proposed. With our Amendment 24ZB, which I have just looked up, and another amendment, we were trying to get the CMA to take on and strengthen the consumer protection, enforcement and guidance role. We noted the comment that the noble Baroness made at that time about the possible lack of independence brought about by bringing the two organisations together. That is slightly different from our amendment but the call that we took was to try to improve what we thought was going to happen. However, looking through the speeches, it appears that we were on the same page for quite a lot of the time.
	I shall try to be brief because it is now time to draw this to a close. There are questions remaining. We get a letter saying that Anglesey has no role; now we find, if I have understood it correctly, that someone is going to be put into Powys to sit there and do the job, but that person will presumably be answerable to employers in Anglesey. We need some clarity on this. We are told that elected councillors will have no role but it is their staff to whom they have a duty of care and other employment responsibilities. It would be extraordinary if elected councillors had no say on what was going on in their premises. Nor have we had a serious answer to why we are not using the same mechanism to approve redress schemes. I did not say “the same redress schemes”; we were talking about the same mechanism to approve them.
	Contrary to what the noble Viscount said, I think that this is about getting rid of quangos. This happened under the Public Bodies Act and that was referred to in the coalition agreement. My noble friend Lord Harris of Haringey is right: this is not about improving the consumer offer, much as I would have liked it to be. I remain doubtful about whether delivering national functions via local trading standards is the most effective way of promoting consumer interests.
	I also still have some concerns about the independence of Citizens Advice. I gather that there are still some discussions about whether it is going to be a public body, with all that that means with regard to procurement and the organisation’s way of working. Some clarification on that is necessary. I have no doubt about the role that Citizens Advice has in helping consumers who have detriment today. We have never questioned that. Our concern is about whether influencing today’s providers, regulators, the Government and Europe can be done by the same body which, every day, answers phone calls and e-mails and has visits from hard-pressed consumers.
	I should say that I am known now as Lady Hayter of Kentish Town. I was, until my last relative died there, going to be Lady Hayter of Ystradgynlais. However, I thought that it would be a bit too much of a challenge to Hansard writers—hence Kentish Town. I also lived in Bodedern in Anglesey. Therefore, I am aware of the strength of those bodies but whether they are the rights ones to take this on, I remain doubtful.
	Having said all that, we can only wish all these new organisations well for the sake of consumers, for the sake of the people whom the noble Baroness has
	looked after for so many years and for the sake of people whom my noble friends Lord Borrie, Lord Harris and Lord Whitty have done so much for. We can only wish them well. I know that what they need at the moment is speed. For those reasons, I beg leave to withdraw my amendment.
	Amendment to the Motion withdrawn.
	Motion agreed.

House adjourned at 7.45 pm.